Duplicity and Lesser Included Offenses
• One of the well-established rules of criminal pleading is that there can be no joinder of separate and distinct offenses in one and the same count.
Baker v. State, 948 N.E.2d 1169, 1175 (Ind. 2011)(citing Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010))
See Ault v. State, 233 N.E.2d 480, 483 (Ind. 1968)(citing Glaser v. State, 183 N.E. 33, 34 (Ind. 1932))(“Separate and distinct offenses created by separate and distinct sections of the statute may not be joined in the same count.”)
• “A single count of a charging pleading may include but a single offense.”
Baker v. State, 948 N.E.2d 1169, 1175 (Ind. 2011)(quoting Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994))
Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010)(citing Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994))
• “Duplicity” occurs when one count improperly alleges two or more separate offenses.
Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010)(citing State v. Weil, 89 Ind. 286, 289 (1883))
• Duplicity is unacceptable “because it prevents the jury from deciding guilt or innocence on each offense separately and may make it difficult to determine whether the conviction rested on only one of the offenses or both.”
Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010)(quoting 5 Wayne R. LaFave et al., Criminal Procedure § 19.3(c) (3d ed. 2007))
Alternative allegations: In general
• By contrast “the State may allege alternative means or ‘theories of culpability’ when prosecuting the defendant for a single offense.”
Baker v. State, 948 N.E.2d 1169, 1175 (Ind. 2011)(quoting Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010))
• In essence the State is permitted to “present[ ] the jury with alternative ways to find the defendant guilty as to one element.”
Baker v. State, 948 N.E.2d 1169, 1175 (Ind. 2011)(quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996))
See Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010)(quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996))(“No error results where the State ‘merely present[s] the jury with alternative ways to find the defendant guilty as to one element.’”)
• “‘[D]ifferent jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.’”
Vest v. State, 930 N.E.2d 1221, 1225-26 (Ind. Ct. App. 2010)(quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996)(quoting Schad v. Arizona, 501 U.S. 624, 631-32 (1991)))
Alternative allegations: The conjunctive rule
• Indiana also adheres to the conjunctive rule which allows the prosecution to charge disjunctive acts in conjunctive language.
Davis v. State, 476 N.E.2d 127, 131 (Ind. Ct. App. 1985), reh’g denied, trans. denied
• “‘Where the statute denounces several acts as a crime, they may be charged in one indictment or in a single count if they are connected in the conjunctive. An indictment drawn in that manner is not duplicitous, and it suffices to prove any one or more of the charges.’”
Vest v. State, 930 N.E.2d 1221, 1226 (Ind. Ct. App. 2010)(quoting Davis v. State, 476 N.E.2d 127, 131 (Ind. Ct. App. 1985), reh’g denied, trans. denied)(quoting Shanholt v. State, 448 N.E.2d 308, 314 (Ind. Ct. App. 1983), reh’g denied))
See Strickland v. State, 29 N.E.2d 950, 951 (Ind. 1940)(citing State v. Fidler, 47 N.E. 464, 465 (Ind. 1897))(“[W]here, as here, a criminal statute enumerates several acts disjunctively, and provides the same punishment for doing any one or all of said acts, then two or more of said acts may be charged conjunctively in a single count without objection for duplicity.”)
• “A statute often makes punishable the doing of one thing or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore, the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or’ and it will not be double, and it will be established at the trial by proof of any one of them.”
Brown v. State, 157 N.E.2d 174, 178 (Ind. 1959), reh’g denied(quoting Howard v. State, 131 N.E. 403, 404-05 (Ind. 1921))
• We also found that the use of “and/or” in the charging information effectively charged the defendants with both of the acts alleged.
Vest v. State, 930 N.E.2d 1221, 1226 (Ind. Ct. App. 2010)(citing Davis v. State, 476 N.E.2d 127, 131 (Ind. Ct. App. 1985), reh’g denied, trans. denied)
Alternative allegations: Proof at trial
• Indiana has long recognized that when an indictment or information conjunctively charges acts which are disjunctively proscribed in the criminal statute, only one of the acts need be proven in order to support a conviction.
Hollowell v. State, 707 N.E.2d 1014, 1020 (Ind. Ct. App. 1999)(citing Chubb v. State, 640 N.E.2d 44, 47 n. 2 (Ind. 1994), reh’g denied)
• The State need not prove each of the alternative specific intents it alleges.
Johnson v. State, 605 N.E.2d 762, 765 (Ind. Ct. App. 1992), trans. denied(citing Bauer v. State, 456 N.E.2d 414, 415 (Ind. 1983))
Multiple acts committed in a single transaction
• Finally, “a count or charge is not duplicitous when it alleges two or more acts committed in a single transaction even if each of the acts constitutes a separate and complete offense by itself.”
Vest v. State, 930 N.E.2d 1221, 1226 (Ind. Ct. App. 2010)(quoting 16A William Andrew Kerr, Indiana Practice: Criminal Procedure § 15.1c (1998))
• Clearly, the State may allege multiple acts in one count of an offense.
Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996)
See Wurster v. State, 708 N.E.2d 587, 598 (Ind. Ct. App. 1999)(“In Cliver, the supreme court held that the State may allege multiple acts in one count of an offense.”)
Lesser included offenses: In general
• A defendant may be charged and tried with greater and lesser included offenses under the same indictment or information.
Webster v. State, 708 N.E.2d 610, 616 (Ind. Ct. App. 1999), trans. denied(citing Redman v. State, 679 N.E.2d 927, 929 (Ind. Ct. App. 1997), trans. denied)
Ballinger v. State, 717 N.E.2d 939, 944 (Ind. Ct. App. 1999)(citing Webster v. State, 708 N.E.2d 610, 616 (Ind. Ct. App. 1999))
• However, a defendant may not be convicted and sentenced upon the lesser included offense when a sentence is also imposed upon the greater offense.
Webster v. State, 708 N.E.2d 610, 616 (Ind. Ct. App. 1999), trans. denied(citing Mason v. State, 532 N.E.2d 1169, 1172 (Ind. 1989), cert. denied, 490 U.S. 1049 (1989))
• It is not error to charge included offenses. Error only occurs when a court attempts to sentence the defendant on the major offense and the included offense.
Maxwell v. State, 608 N.E.2d 1365, 1367 (Ind. 1993)(emphasis added)
• For more information about lesser included offenses, please review Lesser Included Offenses.
Lesser included offenses: Notice
• [T]he fact that a crime is either an inherently or a factually included offense is sufficient notice to the defendant to be prepared to defend against that crime.
Ocelotl-Toxqui v. State, 793 N.E.2d 271, 273 (Ind. Ct. App. 2003)
• For more information about inherently and factually included offenses, please review Lesser Included Offenses.
• Here, a second information was not filed, but a separate information or indictment on a lesser offense to which a criminal defendant has agreed to plead is not necessary to put the defendant on notice of the charges.
Melton v. State, 611 N.E.2d 666, 669 (Ind. Ct. App. 1993), trans. denied(citing State v. Sanders, 596 N.E.2d 225, 227 (Ind. 1992), cert. denied, 507 U.S. 960 (1993))