The opinion
IN THE
Court of Appeals of Indiana
Roy C. Robinson, FILED
Appellant-Defendant Feb 13 2025, 9:21 am
CLERK
v. Indiana Supreme Court
Court of Appeals
and Tax Court
State of Indiana,
Appellee-Plaintiff
February 13, 2025
Court of Appeals Case No.
24A-CR-1814
Appeal from the Marion Superior Court
The Honorable Angela D. Davis, Judge
The Honorable Ross F. Anderson, Magistrate
Trial Court Cause No.
49D27-2303-F1-7865
Opinion by Judge Bradford
Judge Foley concurs.
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Judge Bailey concurs in part and dissents in part with opinion.
Bradford, Judge.
Case Summary
[1] In March of 2023, the armed Roy Robinson forced K.F. into his car in
Indianapolis, forced her to touch his penis and fellate him, and penetrated her
vagina and anus with a prosthetic penis. K.F. managed to escape and alert the
authorities, who apprehended Robinson after he crashed his car into another
vehicle, injuring its two passengers.
[2] The State charged Robinson with two counts of Level 1 felony rape, Level 1
felony attempted rape, Level 3 felony kidnapping, Level 3 felony criminal
confinement, Level 5 felony kidnapping, Level 5 felony criminal confinement,
Level 6 felony operating a vehicle as a habitual traffic violator, Level 6 felony
resisting law enforcement while operating a vehicle, and Level 6 felony resisting
law enforcement causing bodily injury. After a jury convicted Robinson as
charged and he pled guilty to being a habitual offender, the trial court entered
judgment of conviction on all counts except Level 5 felony kidnapping and
Level 5 felony criminal confinement and sentenced Robinson to an aggregate
term of forty-four years of incarceration.
[3] Robinson contends that fundamental error occurred when the trial court failed
to instruct the jury that it must unanimously agree on which particular acts
supported each charge of Level 1 felony rape. Robinson also contends that his
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convictions for Level 6 felony resisting law enforcement while operating a
vehicle and Level 6 felony resisting law enforcement causing bodily injury
violate Indiana prohibitions against substantive double jeopardy. Because we
disagree with both contentions, we affirm.
Facts and Procedural History
[4] On March 13, 2023, K.F. was near the corner of 16th and Dequincy in
Indianapolis when Robinson drove by and asked her if she needed a ride.
Robinson’s car had a “Lyft or, you know, Uber thing in the window[,]” and he
drove off when K.F. told him that she did not need a ride. Tr. Vol. III p. 169.
Robinson soon returned and said that he was going to take the bus because he
had had too much to drink. Robinson approached, and K.F. felt something in
the side of her stomach. Robinson said, “Don’t say anything, or I’ll put it in
your belly” and forced her into his car. Tr. Vol. III p. 170.
[5] Robinson, who was smoking crack cocaine and drinking alcohol, drove off and
eventually arrived at the parking lot of what appeared to be an old warehouse.
K.F. had noticed knives, binoculars, and what appeared to be a gun in the car.
Robinson parked his car in such a way as to prevent K.F.’s escape from the
parking lot but allowed her out of the car briefly to urinate and defecate.
Robinson, who had already forced K.F. to touch his penis, smacked her in the
face with a strap-on prosthetic penis as she relieved herself. Robinson drove to
a park, where he forced K.F. to fellate him and penetrated K.F.’s vagina with
the prosthetic penis because he was unable to get an erection. Tr. Vol. III p.
174. While this was occurring, Robinson told K.F. to call him “Daddy J” and
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“Master J” and said, “I want to hear you say f[***] me like your step daddy
used to do.” Tr. Vol. III pp. 174, 175. After Robinson repeatedly penetrated
K.F.’s vagina and anus with the prosthetic penis, K.F. told him that she had a
friend who liked being dominated and hurt and suggested that they go to her.
[6] At K.F.’s direction, Robinson returned to the area of K.F.’s abduction and,
when he allowed her out of the car, she ran to a nearby liquor store and
contacted police. After police arrived, K.F. identified Robinson’s car when he
happened to drive by. Police followed, stopped Robinson’s car, and
commanded him to exit. Instead of exiting, Robinson fled westbound on 16th
Street with police in pursuit at approximately ninety-two miles per hour, finally
crashing into a van at the intersection of 16th and Sherman Drive. Jose Robert
Leon Utrera and Marcelo Leon Utrera were in the van; Jose suffered “pain in
the back of [his] head and [his] back” that became worse over time and lasted
until trial, Tr. Vol. IV p. 57,1 while Marcello eventually “started feeling pain in
[his] neck and [his] back” severe enough to cause sleep deprivation. Tr. Vol. IV
p. 66.
[7] On March 19, 2023, the State charged Robinson with two counts of Level 1
felony rape, Level 1 felony attempted rape, Level 3 felony kidnapping, Level 3
felony criminal confinement, Level 5 felony kidnapping, Level 5 felony
criminal confinement, Level 6 felony operating a vehicle as a habitual traffic
1
Volume IV of the transcript is mistakenly identified as “VOLUME 3 OF 5” on its title page. Tr. Vol. IV p.
1.
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violator, Level 6 felony resisting law enforcement while operating a vehicle, and
Level 6 felony resisting law enforcement causing bodily injury to Jose and/or
Marcelo. On December 29, 2023, the State filed notice of intent to seek a
habitual-offender enhancement.
[8] A two-day jury trial was held, and Robinson did not object to the trial court’s
jury instructions or tender his own instructions regarding jury unanimity. The
jury found Robinson guilty as charged, and Robinson pled guilty to being a
habitual offender. At sentencing, the trial court vacated one count of
kidnapping and one count of criminal confinement due to double jeopardy
concerns. The trial court sentenced Robinson to thirty-eight years of
incarceration for each of his rape and attempted rape convictions, twenty years
for kidnapping, ten years for criminal confinement, two years for operating a
vehicle as a habitual traffic violator, and two years for each count of resisting
law enforcement, with all sentences to run concurrently. The trial court
enhanced Robinson’s sentence six years by virtue of Robinson’s status as a
habitual offender.
Discussion and Decision
I. Jury-Unanimity Instruction
[9] Robinson argues that because the State chose not to allege specific acts for
counts one and three, the jurors should have been instructed that they must be
unanimous on which act supports each count. “In Indiana, a verdict in a
criminal case must be unanimous.” Calvert v. State, 177 N.E.3d 107, 111 (Ind.
Ct. App. 2021) (citing Fisher v. State, 259 Ind. 633, 646, 291 N.E.2d 76, 82
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(1973)), trans. denied. A potential unanimity problem may exist where there is a
disjunctive charging information or jury instruction, or where the State presents
evidence of a greater number of separate criminal offenses than that with which
the defendant is charged. Baker v. State, 948 N.E.2d 1169, 1175 (Ind. 2011). An
information or instruction is disjunctive if it joins “separate and distinct offenses
in one and the same count.” Id. (citing Vest v. State, 930 N.E.2d 1221, 1225
(Ind. Ct. App. 2010), trans. denied). “A single count of a charging pleading may
include but a single offense.” Townsend v. State, 632 N.E.2d 727, 730 (Ind.
1994). When one count improperly alleges two or more separate offenses,
“[d]uplicity” occurs. Vest, 930 N.E.2d at 1225. “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.” Id. (citation and quotation marks
omitted).
[10] While we generally review jury instructions for an abuse of discretion, Ellis v.
State, 194 N.E.3d 1205, 1214 (Ind. Ct. App. 2022), trans. denied, Robinson
neither objected to the jury instructions that were given nor tendered his own
unanimity instruction and has therefore waived the issue for appellate review.
Baker, 948 N.E.2d at 1178. Robinson attempts to avoid the effects of his waiver
by contending that fundamental error has occurred.
In order to be fundamental, the error must represent a blatant
violation of basic principles rendering the trial unfair to the
defendant and thereby depriving the defendant of fundamental due
process. The error must be so prejudicial to the defendant’s rights
as to make a fair trial impossible. In considering whether a
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claimed error denied the defendant a fair trial, we determine
whether the resulting harm or potential for harm is substantial.
Harm is not shown by the fact that the defendant was ultimately
convicted. Rather, harm is determined by whether the defendant’s
right to a fair trial was detrimentally affected by the denial of
procedural opportunities for the ascertainment of truth to which he
would have been entitled.
Id. at 1178–79 (citations omitted).
[11] The State’s two charges for Level 1 felony rape both alleged in identical
language2 that Robinson had committed rape by “other sexual conduct[,]”
which “means an act involving […] a sex organ of one (1) person and the
mouth or anus of another person; or […] the penetration of the sex organ or
anus of a person by an object.” Ind. Code § 35-31.5-2-221.5. These charges,
however, are not examples of duplicity in charging. They are, rather, examples
of something the State is permitted to do, which is “allege alternative means or
theories of culpability when prosecuting the defendant for a single offense.”
Baker, 948 N.E.2d at 1175 (citation and quotation marks omitted). “In essence
the State is permitted to ‘present[] the jury with alternative ways to find the
defendant guilty as to one element.’” Baker, 948 N.E.2d at 1175 (quoting Cliver v.
State, 666 N.E.2d 59, 67 (Ind. 1996)) (emphasis in Cliver). For each rape count
2
Counts I and III both read as follows:
On or about March 13, 2023, ROY C ROBINSON did knowingly or intentionally cause
another person to perform or submit to other sexual conduct as defined in I.C. 35-31.5-2-221.5
with [K.F.]; when such person was compelled by force, and/or compelled by the imminent
threat of force and ROY C ROBINSON being armed with a deadly weapon[.]
Appellant’s App. Vol. II p. 148.
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in this case, the different acts that could have qualified as “other sexual
conduct” were merely alternate means or theories of culpability confined to one
element of the crime. Because Robinson has failed to establish that duplicity in
the charges against him warranted a unanimity instruction, he has failed to
establish fundamental error.3
II. Double Jeopardy
[12] Robinson contends that his two convictions for Level 6 felony resisting law
enforcement (one enhanced because Robinson used a vehicle to resist, and the
other enhanced because he caused bodily injury during his resistance) violate
Indiana prohibitions against substantive double jeopardy. “Substantive double-
jeopardy claims principally arise in one of two situations: (1) when a single
criminal act or transaction violates multiple statutes with common elements, or
(2) when a single criminal act or transaction violates a single statute and results
in multiple injuries.” Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020). The
analysis laid out in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), governs the first
category of cases, while Powell’s analysis covers the second. Id.
[13] The two offenses in question are “multiple statutes with common elements,” to
which Wadle applies, even if they are defined by different subsections of the
same section of the Indiana Code. Id. Despite the Indiana Supreme Court’s
use of the term “single statute” (which could be understood as referring to a
3
Even defectively duplicitous charges would, we think, be insufficient to establish fundamental error. While
such charges generate the possibility that the jury did not unanimously agree on which acts supported which
charge, this, by itself, falls short of establishing that a fair trial was rendered impossible.
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section of the Indiana Code), Powell explicitly states that it applies to “‘two
counts of the same offense.’” Id. (citation and footnote omitted, emphasis in
Powell). It seems clear enough that if two offenses have different elements, they
are not, in fact, the “same offense.” Such is the case with the two convictions
Robinson challenges.
[14] Even though the State charged Robinson with two varieties of resisting law
enforcement defined in the same section of the Indiana Code, each of the two
offenses, while sharing some elements, is defined in different subsections and
has an element the other lacks. Indiana Code section 35-44.1-3-1(c)(1)(A)
requires the State to prove that the defendant used a vehicle, while Indiana
Code section 35-44.1-3-1(c)(1)(B)(ii) requires the State to prove that the
defendant inflicted bodily injury on, or otherwise caused bodily injury to,
another person. Consequently, they are not the same offense, and Wadle
applies.
[15] Wadle requires us to “first look to the statutory language” for each charge. 151
N.E.3d at 248. The general rule announced in this first step of Wadle is that, if
the language of either statute “clearly permits” multiple punishments, there is
no double-jeopardy violation. Id. Here, it is true that each offense clearly
permits multiple punishments for multiple victims. Both offenses are defined in
Indiana Code section 35-44.1-3-1(c), and Indiana Code section 35-44.1-3-1(i)
provides that “[a] person who commits an offense described in subsection (c)
commits a separate offense for each person whose bodily injury, serious bodily
injury, catastrophic injury, or death is caused by a violation of subsection (c).”
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See also Barrozo v. State, 156 N.E.3d 718, 727 n.7 (Ind. Ct. App. 2020)
(recognizing that the resisting-law-enforcement statute “now explicitly allows
for multiple convictions” when there are multiple victims).
[16] That said, it does not seem to us that application of this general rule seems to
make much sense in this case. Subsection (i) of the resisting-law-enforcement
statute is limited to allowing for multiple punishments for injuries to multiple
persons, and only one of Robinson’s offenses is enhanced because of an injury.
In other words, while the relevant statutory language clearly allows for multiple
punishments under some circumstances, those circumstances do not exist in
this case. Consequently, the statutory language does not clearly permit multiple
punishments in this case. We therefore proceed to step two of the Wadle
analysis.
[17] The second step is to determine whether either of the offenses is inherently or
factually included in the other. Wadle, 151 N.E.3d at 248. An offense that is
inherently included in another is one 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.
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[18] An offense, even if not inherently included in another, is factually included in
the other if the charging information alleges “that the means used to commit
the crime charged include all of the elements of the alleged lesser included
offense[.]” Norris v. State, 943 N.E.2d 362, 368 (Ind. Ct. App. 2011), trans.
denied. The Indiana Supreme Court has recently clarified that “when assessing
whether an offense is factually included, a court may examine only the facts as
presented on the face of the charging instrument.” A.W. v. State, 229 N.E.3d
1060, 1067 (Ind. 2024) (emphasis in A.W.). “Step 2 has core constraints: it
does not authorize courts to probe other facts, such as evidence adduced from
trial.” Id. “The factually included inquiry at this step is thus limited to facts on
the face of the charging instrument.” Id. “‘If neither offense is an included
offense of the other (either inherently or as charged), there is no violation of
double jeopardy’ and the analysis ends—full stop.” Id. (quoting Wadle, 151
N.E.3d at 248).
[19] We conclude that neither of Robinson’s felony resisting-law-enforcement
offenses is included in the other, either inherently or as charged. The relevant
statutory language is as follows:
(a) A person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law
enforcement officer or a person assisting the officer while the
officer is lawfully engaged in the execution of the officer’s
duties;
[…]
commits resisting law enforcement, a Class A misdemeanor,
except as provided in subsection (c).
[…]
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(c) The offense under subsection (a) or (b) is a:
(1) Level 6 felony if:
(A) the person uses a vehicle to commit the offense; or
(B) while committing the offense, the person:
[…]
(ii) inflicts bodily injury on or otherwise causes bodily
injury to another person[.]
Ind. Code § 35-44.1-3-1. Each of the two offenses at issue contains at least one
element the other does not: one requires proof that a defendant used a vehicle
to commit the offense, and the other requires proof that, while committing the
offense, the defendant inflicted or otherwise caused bodily injury to another
person.
[20] Moreover, the two provisions do not differ only in that one involves a “less
serious harm or risk of harm to the same person, property, or public interest[] or
a lesser kind of culpability” than the other; the two offenses differ from one
another in that they involve harms, or the risk of harms, that are distinct. See
Ind. Code § 35-31.5-2-168(3). A person getting injured is not quite the same
harm or risk of harm as that generated by committing the crime using a vehicle.
Not only does the use of a vehicle carry with it the risk of death or very serious
injury that might not otherwise be present in a particular act of resisting law
enforcement, the use of a vehicle also greatly enhances the risk of property
damage or public inconvenience resulting from a police pursuit, which, even if
no damage results, could disrupt traffic and hinder the provision of emergency
services. We conclude that neither the offense of resisting law enforcement
using a vehicle nor of resisting law enforcement resulting in bodily injury is
inherently included in the other.
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[21] We further conclude that neither of Robinson’s offenses, as charged, is factually
included in the other. The charging information for Robinson provides, in part,
as follows:
COUNT IX
On or about March 13, 2023, ROY C ROBINSON did
knowingly or intentionally forcibly resist JOSEPH
DRANSFIELD, a law enforcement officer, while said officer
was lawfully engaged in his duties as a law enforcement officer
and in committing said act ROY C ROBINSON operated a
vehicle;
COUNT X
On or about March 13, 2023, ROY C ROBINSON did
knowingly or intentionally forcibly resist [] JOSEPH
DRANSFIELD, a law enforcement officer, while said officer
was lawfully engaged in his duties as a law enforcement officer
and in committing said act ROY C ROBINSON inflicted bodily
injury on or otherwise caused bodily injury to Jose Utrera and/or
Marcelo Utrera by pain[.]
Appellant’s App. Vol. II p. 149. The evidence tending to prove Jose’s and/or
Marcelo’s bodily injury does nothing to establish that Robinson committed the
resisting with a vehicle, and vice versa. This ends our analysis, with Robinson
having failed to establish a substantive double-jeopardy violation.4
4
Because neither of Robinson’s offenses is inherently or factually included in the other, we do not proceed to
step three of the Wadle analysis, i.e., we engage in no analysis of the evidence actually presented at trial.
If a court has found that one offense is included in the other—either inherently or as charged—
the court must then (and only then) “examine the facts underlying those offenses, as presented
in the charging instrument and as adduced at trial.” Wadle, 151 N.E.3d at 249 (emphasis added)
(citing Bigler v. State, 602 N.E.2d 509, 521 (Ind. Ct. App. 1992), trans. denied). Step 3 functions
as a cabined version of Richardson’s actual evidence test, and it serves an important, practical
role in our double jeopardy analysis: to facilitate the distinction between what would otherwise
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[22] We affirm the judgment of the trial court.
Foley, J., concurs.
Bailey, J. concurs in part and dissents in part with opinion.
ATTORNEY FOR APPELLANT
Christopher Taylor-Price
Marion County Public Defender Agency
Appellate Division
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Michelle Hawk Kazmierczak
Deputy Attorney General
Indianapolis, Indiana
be two of the “same” offenses. See id. at 249 n.27. So, at this final step, a court may only then
probe the underlying facts—as presented in the charging instrument and adduced at trial—to
determine whether a defendant’s actions were “so compressed in terms of time, place, singleness
of purpose, and continuity of action as to constitute a single transaction.” Id. at 249.
A.W., 229 N.E.3d at 1071 (emphasis in A.W.).
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Bailey, J., concurring in part, dissenting in part.
[23] I concur in part one of the majority opinion regarding the Jury-Unanimity
Instruction. However, I dissent to part two of the majority opinion because I
believe the double jeopardy claims should be analyzed under the Powell v. State
framework, rather than the Wadle v. State framework. Moreover, when analyzed
under Powell, I would hold that the two resisting law enforcement convictions
violate double jeopardy principles.
[24] Robinson was charged under a single statute (Indiana Code Section 35-44.1-3-
1) for a single criminal act (resisting law enforcement); therefore, “[t]he
framework of Wadle [v. State, 151 N.E.3d 227 (Ind. 2020)] does not facially
apply, as we are not looking at a violation of multiple statutes with common
elements.” Moyers v. State, __ N.E.3d __, 2024 WL 5250182 at *6 (Bailey, J.,
dissenting in part). This case also does not fit neatly into the framework of
Powell v. State, 151 N.E.3d 256 (Ind. 2020), because we are concerned not with
multiple injuries5 but with one charge of bodily injury and one charge relating
to the means of commission, i.e., the use of a vehicle. Nevertheless, I believe
this case should be governed by Powell because the question is “whether the
same act may be twice punished as two counts of the same offense.” Powell, 151
N.E.3d at 263; see also Jones v. State, 159 N.E.3d 55, 65 (Ind. Ct. App. 2020)
(applying the Powell framework to two counts of kidnapping, one elevated
5
Although the evidence suggested that Robinson injured two people, he was charged with only one count of
resisting law enforcement while inflicting bodily injury.
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because of bodily injury and one elevated due to an intent to obtain ransom),
trans. denied; Barrozo v. State, 156 N.E.3d 718, 725 (Ind. Ct. App. 2020)
(applying the Powell framework where there is a “charging of a single offense in
multiple counts”).
[25] The first step in the Powell analysis is to “review the text of the statute to
identify the appropriate ‘unit of prosecution.’” Jones, 159 N.E.3d at 63 (quoting
Powell, 151 N.E.3d at 265). “[A] unit of prosecution is ‘the minimum amount of
activity a defendant must undertake, what he must do, to commit each new and
independent violation of a criminal statute[.]’” Barrozo, 156 N.E.3d at 725
(quoting United States v. Rentz, 777 F.3d 1105, 1109 (10th Cir. 2015)). The
resisting law enforcement statute is a “conduct-based crime” in that the
minimum amount of activity required to violate the statute is the act of resisting
law enforcement, rather than the result of the resistance or the means of
committing the resistance. Jones, 159 N.E.3d at 64 (discussing the conduct-
based statute of kidnapping). That is, the gravamen of the offense is resisting
law enforcement (see I.C. § 35-44.1-3-1(a)); a particular result (bodily injury) or
means of resisting (use of a vehicle) can elevate the offense (see I.C. § 35-44.1-3-
1(c)), but it would not form the basis of a second, discrete offense.
[26] The resisting law enforcement statute was amended in 2019 to add a subsection
explicitly allowing multiple counts (or units of prosecution) for each victim of
bodily injury inflicted while the defendant resisted law enforcement. See I.C. §
35-44.1-3-1(i). However, as the majority notes, Robinson was not charged with
multiple counts of resisting while causing bodily injury; he was charged with
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one such count (Count 9), and another count of resisting law enforcement by
use of a vehicle, without reference to bodily injury (Count 10). Therefore,
whether or not the resisting law enforcement statute, as applied to Robinson,
contains multiple “units of prosecution” is, at best, ambiguous. Under such
ambiguous circumstances, we must proceed to the second step of the Powell
analysis. See Jones, 159 N.E.3d at 63 (citing Powell, 151 N.E.3d at 264).
[27] Under the second step of Powell, “we examine the facts to determine whether
the defendant’s actions are ‘so compressed in terms of time, place, singleness of
purpose and continuity of action as to constitute a single transaction.’” Id.
(quoting Powell, 151 N.E.3d at 264). If criminal acts are sufficiently distinct,
multiple convictions may stand; however, if the acts are continuous and
indistinguishable, only a single conviction may stand. Powell, 151 N.E.3d at
264-65. “Any doubt counsels against turning a single transaction into multiple
offenses.” Id. at 265 (internal quotation and citation omitted).
[28] Here, there was one continuous act of resisting law enforcement. When police
initially followed Robinson’s vehicle, they pulled him over a few blocks from
the store where K.F. was located. There is no indication that Robinson resisted
law enforcement prior to being initially pulled over. After he pulled over and
was commanded to exit the vehicle, Robinson resisted law enforcement by
fleeing in his vehicle. While in flight during this same episode of resisting law
enforcement, Robinson crashed into a van and caused injury. But he did so
during one and only one act of resisting law enforcement by fleeing in his
vehicle. That is, his one continuous act of resisting law enforcement was so
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compressed in terms of time, place, singleness of purpose and continuity of
action as to constitute a single transaction. Robinson’s multiple convictions for
this single episode of resisting law enforcement violates substantive double
jeopardy principles.
[29] When two convictions contravene double jeopardy principles, we will
remedy the violation by reducing either conviction to a less
serious form of the same offense if doing so will eliminate the
violation. If it will not, one of the convictions must be vacated. In
the interest of efficient judicial administration, the trial court
need not undertake a full sentencing reevaluation, but rather the
reviewing court will make this determination itself, being mindful
of the penal consequences that the trial court found appropriate.
Noble v. State, 734 N.E.2d 1119, 1125 (Ind. Ct. App. 2000) (citations omitted),
trans. denied. Here, the two convictions found to be double jeopardy were both
Level 6 felonies and therefore of equal severity. In addition, the sentences
imposed for each conviction were identical and ordered to run concurrently.
Therefore, “there are no more or less severe penal consequences for vacating
one instead of the other.” Id. at 1126. Under such circumstances, we will simply
choose one count to be vacated. Id. I would remand with instructions for the
trial court to vacate Count X.
[30] In short, although I concur with the majority’s opinion regarding jury
instructions, for the reasons stated above I must respectfully dissent from the
majority opinion regarding double jeopardy.
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