From 1999 until 2020, criminal defendants in Indiana received substantive double jeopardy protections from three sources: the Indiana Constitution, Indiana statutory law, and Indiana common law. But by 2020, most legal practitioners would agree that this area of law had evolved into a legal quagmire. Consequently, our Supreme Court made a bold move: it removed at least one of these areas of protection (the Indiana Constitution) and provided a new framework for analyzing double jeopardy claims under another area of protection (Indiana statutory law).

The Indiana Supreme Court has not issued another double jeopardy decision since its creation of this new framework in 2020. Appellate practitioners who handles these claims, however, are starting to see the case law forming a new quagmire to replace the one we discarded.

Take, for example, two conflicting opinions from the Court of Appeals addressing a foundational issue: which framework to apply to a statutory double jeopardy claim: the framework provided in Wadle v. State, or the framework provided in Powell v. State. In those cases, the Supreme Court explained that the framework was to be used when evaluating double jeopardy claims involving multiple statutes with some common elements that arose from a single act or transaction. The Powell framework, on the other hand, is utilized in evaluating double jeopardy claims involving a single statute but multiple injuries or victims during a single act or transaction.

In Morales v. State, the Court of Appeals applied the Powell framework in analyzing a double jeopardy claim involving multiple fires set to multiple victims’ properties but charged under different subsections of the arson statute. Even though different subsections were involved, the case still dealt with only a single statute: the arson statute.

But recently in Koziski v. State, the Court of Appeals applied the Wadle framework in analyzing a double jeopardy claim involving multiple sexual acts perpetrated against a single victim and charged under a single subsection of the child molesting statute. The Court in Koziski held that the Wadle framework (multiple statutes with common elements) applied because the child molesting statute creates separate crimes in a single subsection of the statute. The Court noted, “We don’t believe the legislature’s decision to delineate separate crimes in one statute as opposed to two should control which double-jeopardy test is applicable.”

This reasoning is somewhat circular, however. One step of the Wadle framework requires the court to analyze whether one offense is an “included offense” of another. The Court of Appeals in Koziski essentially used that analysis to decide whether the Wadle framework even applied. After deciding a single subsection of the statute defined separate offenses, the Court really had no analysis left to do. The second step of the Wadle framework had already been analyzed, albeit for a different purpose, and the analysis revealed the two offenses were not the “same offense.”

At first blush it seemed the easiest part of the new Wadle/Powell framework for practitioners to comprehend would be which part of the framework to apply. Now, things seem clear as mud.