Convictions based on ‘very same behavior’ do not violate double jeopardy

July 30, 2015

A man was unable to overcome heavy precedent and convince the Indiana Supreme Court his convictions violated the state prohibition against double jeopardy.

Gary Sistrunk was convicted of robbery and criminal confinement, both as Class B felonies, for holding up a gas station in Marion County in February 2012. After the bench trial, Sistrunk appealed, arguing the two convictions violated Indiana’s constitutional ban on double jeopardy because the force used to support the robbery conviction was coextensive with the force used to support the confinement conviction.  

A split Indiana Court of Appeals found his convictions did not violate double jeopardy. However, the panel did note the same evidence, namely Sistrunk’s use of a handgun, was improperly used to enhance both his convictions from Class C to Class B felonies.

The Indiana Supreme Court disagreed on that point and affirmed the trial court in Gary Sistrunk v. State of Indiana, 49S05-1410-CR-654.
“In sum, our jurisprudence teaches that committing two or more separate offenses each while armed with a deadly weapon – even the same weapon – is not within the category of rules precluding the enhancement of each offense based on ‘the very same behavior,’” Chief Justice Loretta Rush wrote for the court. “Stated somewhat differently, our recognition in (Richardson v. State, 717 N.E.2d 32 (Ind. 1999)) of the common law rule establishing that enhancements cannot be imposed for the very same behavior could not have included use of a single deadly weapon during the commission of separate offenses.”



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