ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frank R. Hahn Jeffrey A. Modisett
Newburgh, Indiana Attorney General of Indiana
Rosemary L. Borek
Deputy Attorney General
) BRIAN K. COLLINS, ) Defendant-Appellant, ) ) v. ) 87S05-9910-CR-508 ) STATE OF INDIANA, ) Plaintiff-Appellee. )_________________________________________________
APPEAL FROM THE WARRICK SUPERIOR COURT The Honorable Edward A. Campbell, Judge Cause No. 87D01-9601-CF-5
The defendant-appellant, Brian K. Collins, was convicted of rape as a class B
and two counts of criminal deviate conduct as class B felonies.See footnote
The trial court
imposed an aggregate sentence of sixty years, consisting of consecutive twenty-year
sentences on each count. The Court of Appeals affirmed in a memorandum decision.
In light of today's decision in Richardson v. State, --- N.E.2d --- (Ind. 1999), and because the defendant has argued in this appeal that the Indiana Double Jeopardy Clause applies independently of and in addition to federal double jeopardy jurisprudence, we now grant transfer to address his claim that the two convictions for criminal deviate conduct violate the Double Jeopardy Clause of the Indiana Constitution. As to other issues raised, we summarily affirm the Court of Appeals. Ind. Appellate Rule 11(B)(3).
To determine whether two challenged convictions are the same offense in violation of Article I, Section 14 of the Indiana Constitution, we evaluate whether, 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. Richardson, --- N.E.2d at --- (slip op. at 27). The first aspect of this analysis is the statutory elements test, which identifies and compares the essential statutory elements of the challenged crimes to determine if each offense contains at least one element separate and distinct from the other. Id. at --- (slip op. at 28).
criminal deviate conduct crimes occur, even when they are very similar acts done many
times to the same victim, they are chargeable individually as separate and distinct
criminal conduct. Brown v. State, 459 N.E.2d 376, 378 (Ind. 1984).
The essential statutory elements of one of the two counts of deviate sexual conduct are that the defendant knowingly caused his victim to perform an act of oral sex. The essential statutory elements of the other count are that the defendant knowingly caused the victim to submit to an act of anal sex. Each of the two counts thus contains at least one essential element separate and distinct from the other. For this reason, the two statutory offenses are not the same offense. We find no violation of the Indiana Double Jeopardy Clause shown by application of the statutory elements test.
The defendant's argument that his conduct constituted only one continuous sexual assault, rather than separate crimes, also invites application of the actual evidence test, a second method for evaluating same offense for purposes of the Indiana Double Jeopardy Clause. Under this test, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Richardson, --- N.E.2d at --- (slip op. at 33). 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 the second challenged offense. Id. at --- (slip op. at 33-34).
The defendant asserts that there was only one continuous sexual assault and that, [o]nce the assault began, Collins only paused to reposition his victim before continuing.
Brief of Appellant at 6. He argues that [t]he act of deviancy occurred in one
uninterrupted assault, Brief of Appellant at 8, and that the behaviors resulting in the two
convictions were merely two manifestations of the same act of deviance, Brief of
Appellant at 11.
Distinguishing separate crimes is often difficult, particularly in cases of sexual assault. In Brown, this Court treated two separate acts of criminal deviate conduct as separate crimes, emphasizing:
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, 459 N.E.2d at 378 (citations omitted). Other cases have treated claims of multiple criminal sexual activities as a single act. See, e.g., Watkins v. State, 575 N.E.2d 624, 625 (Ind. 1991) (finding the acts were committed within moments of each other as part of one incident); Bowling v. State, 560 N.E.2d 658, 660 (Ind. 1990) (finding the same injurious consequences sustained by the same victim during a single confrontation); Ellis v. State, 528 N.E.2d 60, 61 (1988) (finding child molesting and incest were based upon the identical incident).
The resolution of such claims is extremely fact-sensitive and is properly resolved by determining whether the challenged offenses are the same offense under the actual evidence test of the Indiana Double Jeopardy Clause. In the present case, separate evidentiary facts were clearly used to establish the compelled oral sex and the compelled
anal sex. When the thirteen-year-old victim tried to escape, the defendant pulled her back
by the hair, pushed her down, removed her clothes, and then engaged in vaginal
intercourse; he then forced his penis into her mouth and thereafter once again penetrated
her vaginally; and then he had anal intercourse with her. We find that there is no
reasonable possibility that the evidentiary facts used by the jury to establish the essential
elements of criminal deviate conduct by compelled oral intercourse were also used to
establish the essential elements of criminal deviate conduct by compelled anal
intercourse. We find no violation of the Indiana Double Jeopardy Clause shown by
application of the actual evidence test.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, J., concur. BOEHM, J., concurs in result with separate opinion in which SELBY, J., concurs.
Frank R. Hahn
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
BRIAN K. COLLINS, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 87S05-9910-CR-508
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 87A05-9806-CR-299
Appellee (Plaintiff Below). )
N.E.2d , (Ind. 1999), I base my conclusion on the common law rule of Thompson v.
State, 259 Ind. 587, 592, 290 N.E.2d 724, 727 (1972), which requires the facts giving rise
to the offenses be independently supportable, separate and distinct. Here there were two
distinct acts, each a violation of Indiana Code § 35-42-4-2 as criminal deviate conduct is
defined by Indiana Code § 35-41-1-9. Because the charging instrument properly identified
each violation, the convictions are proper.
SELBY, J., concurs.
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