Michael T. Schoeff v. State of Indiana ( 2024 )

FILED
Aug 26 2024, 8:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Michael T. Schoeff,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
August 26, 2024
Court of Appeals Case No.
23A-CR-02163
Appeal from the Delaware Circuit Court
The Honorable John M. Feick, Judge
Trial Court Cause No.
18C04-2011-F1-000014
Opinion by Judge Mathias
Judge Tavitas concurs with separate opinion
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Judge Weissmann concurs in part and dissents in part, with separate
opinion
Mathias, Judge.
[1] 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.
Facts and Procedural History
[2] In October 2020, Schoeff was romantically involved with Vera Morgan, and
Schoeff lived in Muncie. On or about October 10, Matthew Stockton and
Mandy Hart, who were also romantically involved and had a child together,
arranged to purchase heroin from Morgan. Stockton and Hart traveled to
Schoeff’s home, and, when they arrived, Schoeff weighed the heroin. Schoeff
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then gave the heroin to Morgan, who sold it to Hart. Stockton and Hart injected
the heroin while they were still at Schoeff’s home. Hart overdosed but was
revived with Suboxone that Schoeff gave to Stockton. Morgan then asked Hart
and Stockton to leave, which they did.
[3] Hart and Stockton returned to Muncie on October 16. When they arrived, Hart
contacted Morgan and arranged to buy more heroin from her. The two agreed
to meet at a gas station located at the intersection of Port and Hoyt roads. Hart
and Stockton arrived at the gas station first. They saw Schoeff and Morgan pull
into the gas station, and Schoeff was driving the vehicle. Schoeff exited the
vehicle and entered the gas station storefront. Hart and Stockton then entered
Schoeff’s vehicle and sat in the back seat while Morgan remained in the front
seat. Morgan gave Hart heroin in exchange for $40. After Schoeff exited the gas
station, he and Morgan offered Hart and Stockton a ride home.
[4] At Stockton’s home, Hart injected Stockton with heroin and then injected
herself. Hart then passed out and stopped breathing. Stockton performed chest
compressions, and after several minutes, Hart began breathing again but she
remained unconscious. Stockton then injected himself again. Sometime later,
Hart woke up, and she and Stockton agreed to split the remaining heroin. Hart
injected Stockton, and he passed out. When he regained consciousness, Hart
was lying face down on the floor. Stockton soon discovered that Hart had died.
Hart underwent an autopsy, and the forensic pathologist determined that her
cause of death was a fentanyl overdose.
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[5] During the investigation of Hart’s death, Stockton told law enforcement officers
that he and Hart had purchased the heroin from Morgan and Schoeff. Stockton
also gave the officers the passcode to Hart’s cellphone. Law enforcement
officers found text messages between Hart and Morgan detailing transactions
between them for the purchase of heroin and syringes.
[6] Schoeff and Morgan were arrested on November 3. Schoeff admitted to the
officers that he had used and participated in dealing illegal drugs. However, he
denied selling drugs to Hart and Stockton on October 16. He admitted that he
saw them at the gas station that day and gave them a ride home. Later, Schoeff
confessed that he had sold drugs to Stockton and Hart on October 10. And
Morgan’s and Schoeff’s cell phones contained numerous messages discussing
drugs and drug dealing, including selling heroin and fentanyl.
[7] The State charged Schoeff with Level 1 felony aiding, inducing, or causing
dealing in a controlled substance resulting in death and Level 5 felony
conspiracy to commit dealing in a narcotic drug. Those charges provided in
relevant part:
Count 1
[B]etween October 16, 2020 and October 17, 2020 . . . Schoeff did
knowingly aid, induce or cause another person or persons, to-wit:
Vera Morgan to commit the crime of Dealing in a Controlled
Substance Resulting in Death, which is defined as knowingly
delivering a controlled substance in violation of IC 35-48-4-1, and
the controlled substance when it was used, injected, inhaled,
absorbed or ingested resulted in the death of Mandy Hart . . . .
Count 2
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[B]etween October 16, 2020 and October 17, 2020 . . . Schoeff
with the intent to commit the felony of dealing in a narcotic drug,
did agree with another person or persons, to-wit: Vera Morgan
and/or other unnamed person or persons to commit said crime of
dealing in a narcotic drug; and in furtherance of said agreement,
Michael Schoeff or the person or persons with whom he agreed
did commit one or more of the following overt acts: 1) obtained a
substance purported to be heron or fentanyl; 2) communicated
with Mandy Hart; 3) arranged the sale of heroin and/or fentanyl;
4) provided heroin and/or fentanyl to Mandy Hart . . . .
Appellant’s App. Vol. 2, pp. 163-64. The State also alleged that Schoeff was a
habitual offender.
[8] Schoeff’s first jury trial commenced on August 22, 2022. During its closing
arguments, the State argued that it had proven that Schoeff had aided Morgan
to commit dealing in a controlled substance causing death because Stockton
testified that he and Hart arranged to meet Schoeff and Morgan to purchase
heroin as they had done the weekend prior to October 16. Tr. Vol. 4, p. 14. The
State argued that the evidence established that Schoeff and Morgan had used
the same gas station as a meeting point to sell drugs in the past. Id. at 15. And
the State relied on Stockton’s testimony that Schoeff drove Morgan to the gas
station, and Morgan sold heroin to Hart while they were seated in Schoeff’s
vehicle at the gas station. 1 Id. To prove Count II, the State relied on Schoeff’s
confession that he was involved in drug dealing with Morgan and messages
between their cellphones detailing the drug dealing operation. Id. at 9. The jury
1
The jury was instructed that “[t]o aid under the law is to knowingly aid, support, help or assist in the
commission of a crime. It is knowingly doing some act to render aid to the actual perpetrator of the crime.”
Appellant’s App. Vol. 2, p. 246. The jury was also given an “accomplice” instruction. Id. at 247.
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instructions defining the charged offenses were nearly identical to the charges
quoted above. See Appellant’s App. Vol. 2, pp. 210, 219, 240.
[9] The jury found Schoeff guilty of the conspiracy charge, Count II, but could not
reach a verdict on Count I, dealing causing death. The trial court entered a
judgment of conviction on Count II, and on March 29, 2023, the court imposed
a five-year sentence in the Department of Correction.
[10] Thereafter, Schoeff moved to dismiss Count I, arguing that retrial on that
charge would violate his double jeopardy rights. The trial court denied Schoeff’s
motion, and a second jury trial on Count I commenced on April 24. The jury
found Schoeff guilty on that Count. The jury also found that Schoeff was a
habitual offender.
[11] The trial court held Schoeff’s sentencing hearing on August 16. The court
vacated Schoeff’s conviction for Count II due to double jeopardy concerns. 2
The trial court then imposed a thirty-two-year sentence for Count I, which the
court enhanced by twelve years for the habitual offender adjudication, for an
aggregate executed sentence of forty-four years.
[12] Schoeff now appeals.
2
The State did not agree with the trial court’s decision to vacate the Level 5 felony conspiracy conviction.
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Double Jeopardy
[13] 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 35-
41-4-3(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.
[14] 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.) . . . .
3
Schoeff cites to the Fifth Amendment prohibition against double jeopardy in his Appellant’s brief.
However, he does not develop any argument under the Fifth Amendment, and, therefore, he has waived any
double jeopardy claim under the United States Constitution. See Denney v. State, 219 N.E.3d 784, 789 n.3
(Ind. Ct. App. 2023) (citing Ind. Appellate Rule 46(A)(8)(a)).
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(Emphases added.) After his first trial, the trial court entered a judgment of
conviction against Schoeff for the offense of conspiracy.
[15] 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”).
[16] 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. Indiana Code section 35-31.5-2-168 defines an “included
offense” as follows:
“Included offense” means 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
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(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.
[17] “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.
[18] 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 35-41-4-
3(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
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felony aiding, inducing, or causing dealing in a controlled substance resulting in
death charge.
[19] 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.”4 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.4
Our supreme court first utilized the Richardson test to address a claim of procedural double jeopardy in
Garrett v. State, 992 N.E.2d 710 (Ind. 2013). However, Richardson was a substantive double jeopardy case, and
therefore, the entire premise that Richardson’s actual-evidence test applies in the procedural double jeopardy
context rests on shaky foundations. In Cleary, decided approximately sixteen months after Garrett, our
supreme court declined to apply the Richardson actual-evidence test to a procedural double jeopardy claim.
See Cleary, 23 N.E.3d at 673. In that case, the jury returned a guilty verdict on the lesser offenses and
deadlocked on the greater offenses. The trial court did not enter a judgment of conviction on the lesser
offenses, and therefore, our supreme court held that under the doctrine of continuing jeopardy, the defendant
was not placed in jeopardy twice for the same offense. Id. at 673-74.
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[20] 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.
[21] Until our supreme court concludes otherwise, we must continue to apply the
Richardson actual-evidence test to claims of procedural double jeopardy.
Morever, 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.
[22] 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.” 717 N.E.2d 32, 53 (Ind. 1999); see also Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008) (explaining that the existence of a “‘reasonable
possibility’ turns on a practical assessment of whether the jury may have latched
on to exactly the same facts for both convictions”). “The actual evidence test is
applied to all the elements of both offenses.” Garrett v. State, 992 N.E.2d 710,
719 (Ind. 2013). If the “evidentiary facts establishing the essential elements of
one offense also establish only one or even several, but not all, of the essential
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elements of a second offense,” there is no double jeopardy violation. Id. (citing
Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).
[23] 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.
[24] 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.
[25] 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
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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.
[26] 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. 5
Sufficient Evidence
[27] Schoeff also claims that his Level 1 felony conviction is not supported by
sufficient evidence. For sufficiency of the evidence challenges, we consider only
probative evidence and reasonable inferences that support the judgment of the
trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will neither
reweigh the evidence nor judge witness credibility. Id. We will affirm a
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Id.[28] To prove that Schoeff committed Level 1 felony aiding, inducing, or causing
dealing in a controlled substance resulting in death, the State was required to
5
Although not raised by Schoeff in his Appellant’s brief, we also observe that under the doctrine of
continuing jeopardy, retrial following a “hung jury” does not violate a defendant’s double jeopardy rights.
Cleary, 23 N.E.3d at 673 (citing Griffin v. State, 717 N.E.2d 73, 78-79 (Ind. 1999)). The doctrine of continuing
jeopardy provides that “a defendant who is retried following a hung jury is not placed in jeopardy twice for
the same offense, because the initial jeopardy that attaches to a charge is simply suspended by the jury’s
failure to reach a verdict.” Id. (quoting Davenport v. State, 734 N.E.2d 622, 625 (Ind. Ct. App. 2000)).
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show (1) Schoeff knowingly or intentionally aided, induced, or caused Morgan
to deliver a controlled substance to Hart; (2) Hart used, injected, inhaled,
absorbed, or ingested the controlled substance; (3) resulting in Hart’s death. See
I.C. §§ 35-42-1-1.5(a) & 35-41-2-4; Appellant’s App. p. 163. Schoeff argues that
the evidence is insufficient to support his conviction because he was not in the
vehicle when Morgan gave Hart heroin in exchange for $40. Further, he claims
there was no evidence that he “had any involvement in the sale or dealing of
the drug . . . .” Appellant’s Br. at 12.
[29] Contrary to Schoeff’s claims, the State presented sufficient evidence to establish
that he and Morgan were both involved in dealing heroin to Hart and Stockton.
Stockton testified that he and Hart had purchased heroin from Schoeff and
Morgan a week before the dealing transaction charged in this case. Stockton
saw Schoeff weigh the heroin and give it to Morgan before she completed the
transaction with Hart. On October 16, Morgan and Hart arranged to meet so
that Hart could purchase heroin. Schoeff drove Morgan to the gas station to
meet with Hart and Stockton. Schoeff exited the vehicle and went into the
storefront but did not make any purchases while he was at the gas station. From
this evidence, it was reasonable for the jury to conclude that the only reason
Schoeff and Morgan were present at the gas station was to sell heroin to Hart
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and Stockton. Morgan completed the drug transaction with Hart, and Schoeff
returned to the vehicle and drove Hart and Stockton back to Stockton’s home. 6
[30] 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.7
Conclusion
[31] 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.
6
Schoeff does not challenge the sufficiency of the evidence proving that Morgan sold the fentanyl to Hart,
which Hart ingested, causing her death.
7
Because the trial court vacated Schoeff’s Level 5 felony conspiracy to commit dealing conviction, we do not
address his claim that the evidence was also insufficient to support that conviction.
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[32] Affirmed.
Tavitas, J., concurs with separate opinion.
Weissmann, J., concurs in part and dissents in part, with separate opinion.
ATTORNEY FOR APPELLANT
Antonio G. Sisson
Muncie, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
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Tavitas, Judge, concurring.
[33] 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.
[34] 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
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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.
I. Successive Prosecution Statute
[35] 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.
Appellant’s Br. p. 10. The Successive Prosecution Statute provides, in relevant
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.).
(Emphasis added).
8
I agree with my colleagues that Schoeff’s federal double jeopardy argument is waived.
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[36] 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 35-31.5-2-
168, not the Richardson actual-evidence test.
[37] 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.
[38] 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
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whether the two offenses are “included” under the Successive Prosecution
Statute before we decide the constitutional issue here.
[39] 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.
[40] 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.
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II. Procedural Double Jeopardy under the Indiana Constitution
[41] 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.
[42] The Court in Richardson, however, sought to breathe new life into the Indiana
Constitution as an independent source of double jeopardy protections apart
from its federal counterpart. Id. Richardson, thus, announced the following test
to govern double jeopardy under the Indiana Constitution: “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.” 9 Id.
[43] Richardson, however, was a somewhat fragmented decision. Justices Shepard
and Sullivan concurred, but Justice Sullivan expressed concerns about the
breadth of Richardson’s application. Id. at 55 (Sullivan, J., concurring). Justices
9
Only the “actual evidence” portion of the Richardson test is implicated in the case before us.
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 21 of 47
Selby and Boehm each concurred in the result with separate opinions. Notably,
Justice Selby believed that the majority’s test lost sight of a “straightforward
idea—a person cannot be tried twice for the same crime.” Id. at 57 (Selby, J.,
concurring in result).
[44] Richardson’s troubles did not end there. Discussing Richardson over several
pages in Wadle, 151 N.E.3d at 241, our Supreme Court noted that, despite
Richardson’s “lofty goal, subsequent application of the rule quickly proved
untenable, ultimately forcing the Court to retreat from its all-inclusive analytical
framework.” Richardson’s two-part test, which involved comparing the
statutory elements and the actual evidence presented at trial, “generated more
confusion than clarity, causing some courts to conflate the separate tests.” Id.
Apart from this, “selective[]” application of one test over the other produced
“inconsistent results.” Id.
[45] Amidst these complications in applying Richardson, our Supreme Court
attempted to clarify ambiguities in the actual-evidence test, but this only created
new problems in applying that test. Id. at 242-43. The newly formulated
actual-evidence test rendered the test “vulnerable to arbitrary application.” Id.
at 243. The Court increasingly distanced itself from the actual-evidence test
and “turned to the rules of statutory construction and common law announced
by Justices Sullivan and Boehm in their respective Richardson concurrences,”
but this in turn generated new “confusion among the bench and bar over the
proper standard to address claims of double jeopardy.” Id. Richardson, thus,
resulted in what Wadle described as:
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a patchwork of conflicting precedent, a jurisprudence of “double
jeopardy double talk” that underscores Richardson’s inherent
flaws. See Akhil Reed Amar, DOUBLE JEOPARDY LAW MADE
SIMPLE, 106 Yale L.J. 1807, 1807 (1997). The shifting standards
and inconsistent application of controlling tests create an
unpredictable approach to double jeopardy, ultimately depriving
our courts of clear guidance and preventing the Indiana bar—
defense counsel and prosecutors alike—from effectively preparing
their cases and representing their clients.
Id. at 244.
[46] In light of these difficulties, our Supreme Court in Wadle made significant
changes to our double jeopardy jurisprudence. Wadle “expressly” overruled
Richardson in the context of substantive double jeopardy claims and announced
a new analytical framework based on statutory interpretation. Id. The Court
further held that Article 1, Section 14 of the Indiana Constitution “operates
only as a procedural bar to successive prosecutions for the same offense.”
Wadle, 151 N.E.3d at 237. After Wadle, substantive double jeopardy is no
longer rooted in the Indiana Constitution or governed by Richardson. The
Indiana Constitution governs only procedural double jeopardy.
[47] 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.
[48] The confusion and disagreement espoused by Richardson’s actual-evidence test,
however, exist just as profoundly in the procedural double jeopardy context as
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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.
[49] 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.
[50] In Garrett, the defendant was charged with two rapes of the same woman in the
same day. In the first trial, the jury found Garrett not guilty of one of the rape
charges but was “unable to reach a verdict” on the other rape charge. Id. at
716. At a second trial on the hung rape charge, the trial court found Garrett
guilty. Id. at 717. After an unsuccessful appeal, Garrett sought post-conviction
relief and argued that his trial and appellate counsel were ineffective for failing
to raise a double jeopardy challenge to the second trial. Id. at 718. At the time,
this Court had expressed uncertainty about the application of the Richardson
actual-evidence test to procedural double jeopardy cases. See Buggs v. State, 844
N.E.2d 195, 201-202 (Ind. Ct. App. 2006), trans. denied, declined to follow by
Garrett, 992 N.E.2d 710.
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[51] 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. 10 Id. at 723-25.
[52] 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. 11
10
The Court concluded, however, that Garrett’s counsel were not ineffective.
11
In the instant case, although Schoeff objected to the second trial on double jeopardy grounds before that
trial commenced, he did not argue in his motion that the actual-evidence test applied. Rather, Schoeff argued
in his motion that Wadle had “overrul[ed]” Richardson and that the Wadle test required dismissal of the aiding
charge and vacatur of the second trial. Appellant’s App. Vol. III p. 98.
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[53] 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.
[54] 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, non-
speculative, and lends itself to consistent application.
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 26 of 47
Weissmann, Judge, concurring in part and dissenting in part.
[55] 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.
[56] 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.
[57] 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
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 27 of 47
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.
Discussion
I. Procedural Double Jeopardy and the Actual-Evidence Test
[58] Substantive double jeopardy refers to “claims concerning multiple convictions
in a single prosecution, as opposed to ‘procedural double jeopardy’ claims,
which [generally] concern convictions for the same offense in successive
prosecutions.” Carranza v. State, 184 N.E.3d 712, 715 (Ind. Ct. App. 2023)
(quoting Wadle, 151 N.E.3d at 248-49). “[B]oth strands of double jeopardy—
substantive and procedural—share a ‘core policy’ of preventing the state ‘from
prosecuting and punishing arbitrarily, without legitimate justification.” Wadle,
151 N.E.3d at 246 (quoting Note, Twice in Jeopardy, 75 Yale L.J. 262, 267
(1965)). But the similarities between substantive and procedural double
jeopardy largely end there.
[59] For instance, the implications of a procedural double jeopardy violation are
necessarily broader and more burdensome than those associated with a
substantive double jeopardy transgression. See id. (ruling that “the procedural
bar to double jeopardy, ‘whether following acquittals or convictions,’ placates
‘concerns that extend beyond merely the possibility of an enhanced sentence’ or
excessive punishment” (citations omitted)). For one, a procedural double
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 28 of 47
jeopardy violation contravenes Article 1, Section 14 whereas a substantive
double jeopardy violation does not. See id.[60] And unlike substantive double jeopardy, procedural double jeopardy arises
from multiple prosecutions, not a lone trial. As a result, a procedural double
jeopardy violation usually involves greater State overreach and attendant
burdens on the defendant. These burdens can include “a continuing state of
anxiety and insecurity,” embarrassment, expense, and an increased risk of
wrongful conviction upon retrial when faced with an entirely new jury. Id. at
245 (quoting Green v. United States, 355 U.S. 184, 187 (1957)). After all,
“[j]eopardy is the risk of trial and conviction, not punishment.” Garrett v. State,
992 N.E.2d 710, 721 (Ind. 2013).
[61] 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.
[62] 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
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 29 of 47
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.
[63] 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.
A. Application of the Actual-Evidence Test After Richardson
[64] Four years after handing down Richardson, our Supreme Court added that “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.” Spivey, 761
N.E.2d at 833. Though Wadle interpreted this language as ruling that
Richardson’s actual-evidence test requires a total evidentiary overlap between the
essential elements of both offenses, most of our Supreme Court’s pre-Wadle
decisions relying on Spivey—and even Spivey itself—reach results consistent
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 30 of 47
with a straightforward Richardson actual-evidence analysis. Wadle, 151 N.E.3d
at 242-43; Spivey, 761 N.E.2d at 832-34.
[65] Just after noting that no double jeopardy violation occurs when “the essential
elements of one offense also establish only one or even several, but not all, of
the essential elements of a second offense,” our Supreme Court in Spivey noted:
Application of this principle has been articulated in different
ways. Compare Richardson, 717 N.E.2d at 54 (“the defendant has
demonstrated a reasonable possibility that the evidentiary facts
used by the jury to establish the essential elements of robbery
were also used to establish the essential elements of the class A
misdemeanor battery”), with Chapman v. State, 719 N.E.2d 1232,
1234 (Ind.1999) (“the same evidence used by the jury to establish
the essential elements of murder was also included among the
evidence establishing the essential elements of robbery as a Class
A felony”).
Spivey, 761 N.E.2d at 833.
[66] By affirmatively citing Richardson and Chapman, which found a double jeopardy
violation when the same evidence proved all the essential elements of one crime
but only part of the essential elements of another, Spivey signaled that it was not
changing Richardson’s actual-evidence test. In other words, treating Spivey’s
“only one or even several, but not all” language as requiring a full evidentiary
overlap before double jeopardy occurs appears inconsistent with the rest of
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 31 of 47
Spivey’s analysis. At no point does Spivey acknowledge its intent to revise
Richardson’s actual-evidence test. 12
[67] And after Spivey, the supposed requirement that a defendant prove a complete
evidentiary overlap to show a double jeopardy violation did not create an
analytical shift—at least not in our Supreme Court. To date, the Court has
relied on Spivey in 18 double jeopardy cases. In only 3 of those did the Court
suggest that Spivey required a complete evidentiary overlap. And none of those
3 was otherwise inconsistent with Richardson:
• Tyson v. State, 766 N.E.2d 715, 717 (Ind. 2002) (ruling that for separate
drug transactions, “convictions for both dealing a narcotic drug and
conspiracy to deal a narcotic drug violate the Indiana Double Jeopardy
12
Our Supreme Court has never indicated that Spivey overruled Richardson. To the contrary, the Court in
Wadle specifically preserved Richardson’s actual-evidence test in a procedural double jeopardy context. Wadle,
151 N.E.3d at 244 n.15. But if Spivey is construed as requiring full evidentiary overlap before a double
jeopardy violation occurs, Spivey is entirely inconsistent with Richardson.
This is so because the convictions on which Richardson based its double jeopardy finding—robbery and
misdemeanor battery—did not involve a full evidentiary overlap. The essential elements of the robbery were
the defendant’s knowing or intentional taking of property from the victim by using or threatening the use of
force on the victim. Richardson, 717 N.E.2d at 51. The essential elements of the misdemeanor battery were
the defendant’s knowing or intentional touching of the victim in a rude, insolent, or angry manner. Id. at 52.
The evidence of the taking of property from the victim—a billfold—helped prove the essential elements of
robbery but did not prove any of the essential elements of misdemeanor battery under the facts of Richardson.
Id. at 54. Yet, Richardson found that because all the evidence used to prove the battery also helped prove the
essential elements of the robbery, “the defendant has demonstrated a reasonable possibility that the
evidentiary facts used by the jury to establish the essential elements of robbery were also used to establish the
essential elements of the class A misdemeanor battery.” Id. at 54.
Essentially, our Supreme Court in Richardson found a double jeopardy violation because the evidence that
proved all the essential elements of one offense (battery) was encompassed within the broader evidence
proving the essential elements of the other offense (robbery). Thus, Richardson cannot be interpreted as
requiring that all the elements of robbery must have been proven with the same evidence as all the elements of
misdemeanor battery. In fact, if that had been the test in Richardson, a different outcome would have been
reached, given that the same evidence did not prove all the elements of both robbery and battery.
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 32 of 47
Clause,” although the conspiracy counts required evidence of an
agreement that the dealing counts did not).
• Sloan v. State, 947 N.E.2d 917, 924-25 (Ind. 2011) (finding no double
jeopardy violation arising from convictions for Class A and Class C
felony child molesting where the evidence showed distinct acts of
fondling and penetration).
• Wadle v. State, 151 N.E.3d at 242-43, 243 n.14 (mentioning, but not
applying, the essential-elements language from Spivey).
[68] During the two decades bridging Tyson, Sloan, and Wadle, our Supreme Court
did not again suggest that Spivey required a complete evidentiary overlap. In
fact, the Court’s 15 other double jeopardy cases citing Spivey do not establish an
actual-evidence test that is different from Richardson’s version. 13
[69] For instance, in Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008), our Supreme
Court simply described Spivey as “explain[ing]” the Richardson actual-evidence
test. In four other decisions, the Court stated that Spivey “clarified” Richardson.
Layman v. State, 42 N.E.3d 972, 980 n.7 (Ind. 2015) (quoting Spivey, 761 N.E.2d
at 833); Gross v. State, 769 N.E.2d 1136, 1138 (Ind. 2002); Davis v. State, 770
N.E.2d 319, 323 (Ind. 2002); Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).
13
Layman v. State, 42 N.E.3d 972, 980 n.7 (Ind. 2015); Hines v. State, 30 N.E.3d 1216, 1221-22 (Ind. 2015);
Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013); Sanjari v. State, 961 N.E.2d 1005, 1007 (Ind. 2012); Lee v.
State, 892 N.E.2d 1231, 1234 (Ind. 2008); Bradley v. State, 867 N.E.2d 1282, 1285 (Ind. 2007); Miller v. State,
790 N.E.2d 437, 439 (Ind. 2006); Robinson v. State, 775 N.E.2d 316, 320 (Ind. 2002); Carrico v. State, 775
N.E.2d 312, 314 (Ind. 2002); Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002); Williams v. State, 771 N.E.2d
70, 75 (Ind. 2002); Davis v. State, 770 N.E.2d 319, 323 (Ind. 2002); Gross v. State, 769 N.E.2d 1136, 1138-39
(Ind. 2002); Henderson v. State, 769 N.E.2d 172, 177 (Ind. 2002); Bald v. State, 766 N.E.2d 1170, 1172 (Ind.
2002).
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 33 of 47
[70] At least two of the post-Spivey, pre-Wadle decisions relying on Spivey rested on
the rule that some, but not full, evidentiary overlap is sufficient to establish
double jeopardy. See, e.g., Hines v. State, 30 N.E.3d 1216, 1224-25 (Ind. 2015)
(finding “a reasonable possibility that the same evidence used by the jury to
establish the essential elements of battery was also included among the evidence
used by the jury to establish the essential elements of criminal confinement”);
Davis, 770 N.E.2d at 324 (finding a reasonable possibility that the jury relied on
the same evidence to prove attempted murder and aggravated battery, although
attempted murder required proof of an essential element of attempted murder—
specific intent to kill—that aggravated battery did not); Gross, 769 N.E.2d
at 1139-40 (finding double jeopardy violation where there was a reasonable
possibility that the same evidence used to prove the essential elements of
murder also proved most of the elements of Class A felony robbery.14
[71] Hines is particularly noteworthy because it was written by Indiana Supreme
Court Chief Justice Brent Dickson—the same Justice who authored the
majority opinions in Richardson and Spivey. In Hines, the Court employed an
14
During this post-Spivey, pre-Wadle period, this Court also declined to view Spivey as altering the Richardson
actual-evidence test. In Troutner v. State, 951 N.E.2d 603, 610 (Ind. Ct. App. 2011), trans. denied, a panel of
this Court rejected the State’s claim that, in light of Spivey, a “complete evidentiary overlap” between the
robbery and misdemeanor battery offenses was required before those dual convictions would satisfy the
Richardson actual-evidence test. The Troutner Court reasoned that this “argument is wholly negated by our
supreme court’s analysis in Richardson, where the court held that the battery conviction was duplicative of the
defendant’s robbery conviction.” Id. The Court concluded that “[i]n the language of Spivey, here the
evidentiary facts presented by the State to establish the essential elements of Troutner’s robbery also
established all of the essential elements of his battery,” despite the lack of full evidentiary overlap in the
offenses. Id. Thus, at least to this panel of the Court of Appeals, the actual-evidence tests in Spivey and
Richardson are identical. Id.Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 34 of 47
actual-evidence test more reminiscent of Richardson than Wadle’s interpretation
of Spivey. Hines, 30 N.E.3d at 1221-25. According to the Hines Court, a double
jeopardy violation under the actual-evidence test requires “a reasonable
possibility that the evidentiary facts used by the factfinder to establish the
essential elements of an offense for which the defendant was convicted or
acquitted may also have been used to establish all the essential elements of a
second challenged offense.” Id. at 1222.
[72] Although Hines alluded to Spivey, Hines never stated that the actual-evidence test
required the same proof of all the elements of both offenses. Moreover, Hines’s
finding of a double jeopardy violation arising from criminal confinement and
battery convictions is inconsistent with Spivey if Spivey requires full evidentiary
overlap. The Hines Court found a double jeopardy violation where the jury
could have relied on the same evidence proving the defendant’s touching of the
officer in a rude, insolent manner—an element of Class D felony battery—also
proved the “confined” element of Class C felony criminal confinement. Hines,
30 N.E.3d at 1222. Thus, the Hines Court did not require the same evidence to
prove all the elements of confinement and all the elements of battery. After all,
evidence that the victim was a penal facility employee engaged in her official
duty—an essential element of the battery—did not prove any of the essential
elements of criminal confinement. Ind. Code § 35-42-3-3(b)(1)(C) (2012); Ind.
Code § 35-42-2-1(a)(2)(H) (2012).
[73] In several other post-Spivey decisions, our Supreme Court concluded that no
Article 1, Section 14 violation occurred because the evidence of one essential
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element of one crime was different from the evidence of an essential element of
a second crime. Lee v. State, 892 N.E.2d 1231, 1236-1237 (Ind. 2008) (ruling that
jury likely used the barging into the home to establish the burglary and the
evidence of the defendant’s threats and demands to convict of attempted armed
robbery); Carrico v. State, 775 N.E.2d 312, 314 (Ind. 2002) (finding convictions
for murder and Class B felony robbery did not violate double jeopardy because
the shared evidence was only as to one element of each crime); Williams v. State,
771 N.E.2d 70, 75-76 (Ind. 2002) (finding convictions for Class A felony
burglary and Class C felony intimidation did not violate double jeopardy
because each required evidence of essential elements that the other did not);
Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (finding no double jeopardy
violation arising from convictions for murder by gunshot and carrying a
handgun without a license because carrying a gun and using it were different
acts, presumably proved by different evidence); Henderson, 769 N.E.2d 172, 178
(Ind. 2002) (finding “the offenses of felony-murder and Class A felony
conspiracy [to commit robbery] were each established by the proof of a fact not
used to establish the other offense”); Bald, 766 N.E.2d at 1172 (concluding
“each conviction [Class A felony arson and three felony murders] required
proof of at least one unique evidentiary fact”).
[74] In addition, none of our Supreme Court’s 18 cases citing Spivey that found a
double jeopardy violation did so based on an explicit finding that there was a
reasonable possibility that the same evidence was used to prove all the essential
elements of both offenses. See, e.g., Garrett v. State, 992 N.E.2d 710, 722 (Ind.
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 36 of 47
2013) (double jeopardy violation arose because evidence of first rape was
introduced into evidence of second rape, leaving possibility that jury relied on
the evidence of one crime in finding the defendant guilty of another).
B. Expansion of the Actual-Evidence Test to Acquittals
[75] In the midst of this confusion over Spivey’s impact, our Supreme Court
expanded Richardson’s actual-evidence test to acquittals. Garrett, 992 N.E.2d
at 722-23. In Garrett, the defendant was tried for two alleged rapes of the same
victim on the same day, and the jury acquitted him of the first rape charge but
deadlocked on the second. Id. at 716. The defendant was tried again for the
second rape—this time in a bench trial—but the evidence largely consisted of
the evidence of the first rape for which he had been acquitted. Id. at 716-17. The
Court found “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.” Id. at 723.
[76] 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
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 37 of 47
one misdemeanor OMVI counts. The trial court refused to enter judgment on
the guilty verdicts and ultimately ordered a retrial on all eight counts.
[77] 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.
II. Utilizing the Actual-Evidence Test to Resolve Schoeff’s
Double Jeopardy Claim
[78] 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.
[79] Guided by Richardson and Garrett, and helped by our statutory prohibition
against successive prosecutions (Indiana Code § 35-41-4-3), I would find that
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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.
A. Applying Richardson as Intended
[80] The evidentiary overlap required by Richardson’s actual-evidence test is reflected
in the chart below. In fact, the chart shows that the State used the same
evidence to prove all the essential elements of Conspiracy to Deal and most, but
not all, of the essential elements of Accessory Dealing Resulting in Death:
Essential Elements of Essential Elements of Shared Evidence Used to
Conspiracy to Deal Accessory Dealing Prove these Essential
Resulting in Death Elements
Intent to commit dealing in a Intent to commit dealing in Evidence that Schoeff and
narcotic a controlled substance Morgan had an ongoing
drug selling partnership
and agreed to and did sell
heroin (which contained
fentanyl) to Hart
Agreement between Schoeff Aided, induced, or caused Evidence that: Schoeff
and Morgan to commit Morgan to deliver and Morgan partnered in
dealing in a narcotic controlled substance the sale of narcotics and
other controlled
and substances and divided
Overt acts in furtherance of responsibilities to avoid
the agreement including: (1) detection; Vera obtained
obtaining a substance the illegal drugs they sold
purported to be heroin or from sources in Dayton,
fentanyl; (2) communicating Ohio; both Schoeff and
with Hart; (3) arranging sale Morgan used Morgan’s
of heroin and/or fentanyl; (4) phone through which the
providing heroin and/or drug purchases were
fentanyl to Hart. accomplished; Morgan
agreed through text
Court of Appeals of Indiana | Opinion 23A-CR-02163 | August 26, 2024 Page 39 of 47
messages to sell heroin to
Hart at a specific gas
station; Schoeff drove
Morgan to the gas station
at which Morgan
provided the drugs to Hart
and took her payment;
and Schoeff and Morgan
then drove Hart and her
boyfriend to her
boyfriend’s home
[No comparable element] Use, injection, inhaling, or Evidence that Hart
absorption of fentanyl/ injected the drugs that
heroin resulting in Hart’s Schoeff and Morgan sold
death her earlier that night
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.
B. Successive Prosecution Statute Implications
[81] Aligning with the principles of double jeopardy articulated in Article 1, Section
14, the Successive Prosecution Statute specifies:
A prosecution is barred if there was a former prosecution of the
defendant based on the same facts and for commission of the same
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offense and if . . . 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.)[.]
Ind. Code § 35-41-4-3(a)(1) (emphases added).
[82] The “statutory bar” in the Successive Prosecution Statute “rests on the
longstanding common-law recognition that a ‘lesser included’ offense is the
‘same’ as its greater (encompassing) offense.” Wadle, 151 N.E.3d at 240. But a
not guilty verdict is not a prerequisite to an “acquittal” under the Successive
Prosecution Statute.
[83] Instead, an acquittal of a greater offense may be implied when the first trial
results in judgment of conviction for an included offense. Ind. Code § 35-41-4-
3(a)(1); see Cleary, 23 N.E.3d at 669 (referring to subsection (a) of the Successive
Prosecution Statute as an “implied acquittal provision”). When an implied
acquittal of the greater offense occurs, the defendant may not later be tried on
the greater offense. Hoover v. State, 918 N.E.2d 724, 734-36 (Ind. Ct. App.
2009).
[84] The statutory double jeopardy protections found in the Successive Prosecution
Statute thus overlap with the constitutional double jeopardy protections in
Article 1, Section 14. Both authorities bar a second prosecution based on the
same facts for the same offense that was previously prosecuted to acquittal,
implied acquittal, or conviction in an earlier proceeding. Garrett, 992 N.E.2d
at 722-23; Ind. Code § 35-41-4-3(a)(1). Article 1, Section 14 prevented Schoeff’s
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conviction for Accessory Dealing Resulting in Death after his conviction for
Conspiracy to Deal because the two crimes were the “same offense” under
these circumstances. The Successive Prosecution Statute, in turn, barred
Schoeff’s second trial for Accessory Dealing Resulting in Death because Schoeff
was impliedly acquitted of that offense during the first trial, given that
Conspiracy to Deal and Accessory Dealing Resulting in Death were prosecuted
“based on the same facts” and were therefore “the same offense.” Ind. Code
§ 35-41-4-3(a)(1).
[85] For instance, when a jury finds a defendant guilty of a lesser included offense
but is hung on the greater offense, Article 1, Section 14 bars retrial on the
greater offense after the trial court enters judgment of conviction on the lesser
included offense. Hoover, 918 N.E.2d at 734-36. In other words, Article 1,
Section 14 treats a greater offense and lesser offense as the “same offense” and
prohibits a second trial after conviction or acquittal on one of the two “same
offense[s].” 15
15
A new trial on a count on which the jury hung in the first trial, standing alone, does not implicate double
jeopardy. See, e.g., Haddix v. State, 827 N.E.2d 1160, 1167 (Ind. Ct. App. 2005) (ruling that because the trial
court declined to enter judgment on the guilty verdicts after the first trial, retrial on both the greater and lesser
offenses did not fall within the “literal purview” of the Successive Prosecution Statute). In Schoeff’s case,
however, the trial court entered judgment of conviction on the first jury’s guilty verdict for Conspiracy to
Deal before Schoeff was retried on the Accessory Dealing Resulting in Death count on which the first jury
was hung.
Once the trial court convicted Schoeff of the lesser offense of Conspiracy to Deal, Schoeff was impliedly
acquitted of the same, greater offense of Accessory Dealing Resulting in Death under the Successive
Prosecution Statute, and he also could not be retried. See Hoover v. State, 918 N.E.2d 724, 736 (Ind. Ct. App.
2009) (finding that the defendant’s conviction on the lesser-included robbery offense constituted his implied
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[86] Similarly, the Successive Prosecution Statute “provides that a conviction for a
lesser-included offense absolutely bars any subsequent prosecution for the
greater charged offense, because such a conviction is deemed an acquittal of the
greater offense.” Id. at 736 (quoting Haddix v. State, 827 N.E.2d 1160, 1167 (Ind.
Ct. App. 2005)); Ind. Code § 35-41-4-3(a)(1) (“A conviction of an included
offense constitutes an acquittal of the greater offense, even if the conviction is
subsequently set aside.”).
[87] Given this landscape, a finding under the Richardson actual-evidence test that
Conspiracy to Deal and Accessory Dealing Resulting in Death are the “same
offense” for purposes of Article 1, Section 14 seemingly demands the
conclusion Schoeff seeks: once he was convicted of Conspiracy to Deal, the
Successive Prosecution Statute barred his prosecution in the second trial for
Accessory Dealing Resulting in Death. See Hoover, 918 N.E.2d at 734-36. 16
acquittal under the Successive Prosecution Statute on the greater felony-murder charge on which the jury
hung and precluded his retrial on the greater charge).
16
This result is consistent with our Supreme Court’s view that “[j]eopardy is the risk of trial and conviction,
not punishment.” Garrett v. State, 992 N.E.2d 710, 721 (Ind. Ct. App. 2013). In fact, the idea “that ‘jeopardy’
is ‘risk’ is the very core of double jeopardy jurisprudence.” Id. (quoting Bryant v. State, 660 N.E.2d 290, 299
(Ind. 1995)). Thus, “double jeopardy protection prohibits twice subjecting an accused to the risk that he will
be convicted of a single crime.” Id. (emphasis added). Accordingly, a violation under Article 1, Section 14
has been found when “a defendant demonstrates ‘that he might have been acquitted or convicted on the
former trial’ of the same crime for which he was convicted at the second trial.” Id. (quoting Brinkman v. State,
57 Ind. 76, 79 (1877)).
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III. Misapplication of the Actual-Evidence Test
[88] The actual-evidence test focuses on the evidence used to convict rather than a
strict comparison of only the elements of the offenses. See Richardson, 717
N.E.2d at 53. Thus, the actual-evidence test may reveal a double jeopardy
violation even if the offenses do not have identical elements. Id. (“Even if the ...
statutory elements test[] does not disclose a double jeopardy violation, the
actual evidence test may.”); see, e.g., Guffey v. State, 717 N.E.2d 103, 105-07
(Ind. 1999) (finding convictions for aiding in the commission of armed robbery
and conspiracy to commit armed robbery violated Article 1, Section 14 under
the actual-evidence test, although the differing elements of the two offenses
meant the statutory-elements test was not met).
[89] My colleagues focus almost exclusively on the statutory elements of Schoeff’s
charged offenses, rather than the evidence introduced to prove those elements—
as the Richardson actual-evidence test requires. To convict Schoeff of Accessory
Dealing Resulting in Death, the State had to prove that: (1) Schoeff knowingly
aided, induced, or caused Vera Morgan to knowingly deliver a controlled
substance; and (2) the delivered controlled substance was used, injected,
inhaled, absorbed, or ingested resulting in Mandy Hart’s death. App. Vol. II, p.
37; Ind. Code § 35-48-4-1 (dealing in a narcotic drug statute); Ind. Code § 35-42-
1-1.5(a) (dealing resulting in death statute); Ind. Code § 35-41-2-4 (accessory
liability statute).
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[90] The State could convict Schoeff of Conspiracy to Deal, on the other hand, only
if it proved that Schoeff, with intent to deal in a controlled substance, agreed
with Morgan to deal in a controlled substance and that either Schoeff or
Morgan performed an overt act in furtherance of that agreement. App. Vol. II,
p. 63; Ind. Code § 35-48-4-1(a); Ind. Code § 35-41-5-2. As charged, the overt act
element required proof that either Schoeff or Morgan: “(1) obtained a substance
purported to be heroin or fentanyl; (2) communicated with Mandy Hart; (3)
arranged sale of heroin and/or fentanyl; (4) provided heroin and/or fentanyl to
Mandy Hart.” App. Vol. II, p. 63.
[91] The lead opinion appears to assume that, because the statutory elements of
Conspiracy to Deal and Accessory Dealing Resulting in Death are different, the
evidence introduced to prove them necessarily is different. Taking this analysis
to its logical extreme, a double jeopardy violation would occur only if the
elements of the two offenses were identical. Only then would the evidence
introduced to prove the elements of one offense be identical to the evidence
used to prove all or some elements of the other offense.
[92] In this sense, the lead opinion reads more like an application of the Richardson
statutory-elements test than a Richardson actual-evidence analysis. Under the
statutory-elements test, two offenses are the “same offense” for purposes of
Article 1, Section 14 if the statutory elements of one offense also necessarily
establish the essential elements of the other offense. Richardson, 717 N.E.2d
at 49-52. But our Supreme Court has expressly “exclude[ed] the statutory-
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elements test from claims of procedural double jeopardy.” Wadle, 151 N.E.3d
at 244 n.15 (citing Garrett, 992 N.E.2d at 721).
[93] The concurring opinion similarly rests on a foundation other than the actual-
evidence test by applying an “included offense” analysis to determine whether a
procedural double jeopardy violation exists. Slip Op., ¶¶ 37-40 (relying on
Indiana Code § 35-31.5-2-168 (Included Offense Statute)). Under the Included
Offense Statute, an “[i]ncluded offense” is 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.
[94] 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.
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[95] 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.17
17
I concur with my colleagues’ determination that Schoeff waived his Fifth Amendment double jeopardy
claim.
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