James E. Easter v. State of Indiana

IN THE

Court of Appeals of Indiana

James Easter, FILED

Appellant-Defendant May 04 2026, 8:40 am

CLERK

Indiana Supreme Court

Court of Appeals

v. and Tax Court

State of Indiana,

Appellee-Plaintiff

May 4, 2026

Court of Appeals Case No.

25A-CR-1229

Appeal from the Marion Superior Court

The Honorable James K. Snyder, Judge

Trial Court Cause No.

49D32-2309-F3-27600

Opinion by Judge Weissmann

Judge Bradford concurs in result.

Judge DeBoer concurs.

Court of Appeals of Indiana | Opinion 25A-CR-1229 | May 4, 2026 Page 1 of 25

Weissmann, Judge.

[1] James Easter grabbed his ex-girlfriend by the neck, dragged her to a nearby

couch, and held her there for almost three minutes while he tried to perform

oral sex on her. Though his ex-girlfriend physically and verbally resisted, Easter

was eventually successful. For all this, Easter was convicted of multiple crimes,

including Count I (rape by force), Count II (rape by disregarding refusal), and

Count III (criminal confinement). Easter appeals his convictions on Counts II

and III, arguing that each places him in substantive double jeopardy based on

his conviction on Count I. In other words, he claims his actions amounted to

only one crime, not three. We agree.

[2] Applying our Supreme Court’s recent decision in Moyers v. State, No. 26S-CR-

86 (Ind. March 20, 2026), we conclude that Easter’s convictions on Count I

(rape by force) and Count II (rape by disregarding refusal) were both based on

his performance of oral sex, generally, and therefore, stemmed from the same

base offense. Accordingly, we analyze Easter’s substantive double jeopardy

claim as to Counts I and II under the two-step test enunciated in Powell v. State,

151 N.E.3d 256 (Ind. 2020). At Step 2 of that analysis, we find that Easter

performed a single continuous act of oral sex and, thus, committed only one

rape. His dual convictions on Counts I and II therefore place him in substantive

double jeopardy, and the latter must be vacated.

[3] Meanwhile, Easter’s substantive double jeopardy claim as to Count I (rape by

force) and Count III (criminal confinement) implicates the three-step test

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enunciated in Wadle v. State, 151 N.E.3d 227 (Ind. 2020). At Step 2 of that

analysis, a presumption of double jeopardy arises because the charging

instrument was ambiguous as to whether Count III was factually included in

Count I. The State had the burden to rebut this presumption at Step 3 by

demonstrating that it made clear to the factfinder at trial that Counts I and III

each rested on independent facts. Because neither the State’s evidence nor its

argument at trial distinguished between the force underlying the rape and the

criminal confinement, the State cannot satisfy its burden. The presumption of

double jeopardy therefore remains unrebutted, and Easter’s conviction on

Count III must also be vacated.

[4] Ultimately, we remand for the trial court to vacate Easter’s convictions on

Count II (rape by disregarding refusal) and Count III (criminal confinement) as

well as the concurrent sentences issued for those convictions.

Facts

[5] Easter and his on-again, off-again girlfriend, T.A., ended their volatile romantic

relationship in July 2023. But one night that September, Easter called T.A. and

asked if she could give him a ride home from work. T.A. agreed, but after she

picked up Easter at work, he insisted that T.A. take him to her house instead.

T.A. did not want to reconcile with Easter but did not want to argue with him

either. She therefore complied with his request to go to her house. Once there,

T.A. went to bed while Easter stayed up listening to music.

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[6] T.A. awoke the next morning and told Easter to leave so she could get ready for

the day. Easter, however, proposed that he and T.A. have sex before he left.

When T.A. declined, an argument ensued and quickly escalated to Easter

assaulting T.A. in various ways.

[7] A security camera in T.A.’s living room recorded a series of 10-second video

clips of the assault. These were later compiled into one continuous video that is

2 minutes and 40 seconds in length. The video begins with T.A. yelling, “F**k

you!” at Easter. Exh. 2 at 0:01. In response, Easter approaches T.A., screaming:

“You ain’t ‘bout to keep yelling at me!” Id. at 0:04. The two briefly scuffle

before Easter grabs T.A. from behind, placing his arm around her neck in a

chokehold position. Easter then drags T.A. to the living room couch while

shouting: “You better calm your a** down!” Id. at 0:12.

[8] Once at the couch, Easter sits down, pulling T.A. by her neck down onto his

lap. He then further restrains T.A. by wrapping his legs around her waist. As

T.A. screams and squirms in resistance, Easter shouts: “Why the f**k you tryna

(sic) f**king fight for all the time!” Id. at 0:24. T.A. soon wiggles herself onto

the floor, partially free from Easter’s chokehold and leg wrap, as one 10-second

video clip ends. The next clip begins with Easter and T.A. sitting side-by-side

on the couch, still scuffling. Easter then stands up and begins trying to force

T.A.’s legs apart with his hands. T.A. screams, “Stop!” “Quit!” and “No, don’t

touch me!” as she tries to kick Easter away. Id. at 0:33, 0:46.

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[9] Eventually, Easter forces his head between T.A.’s legs and performs oral sex on

her. T.A. continues to resist Easter by screaming, squirming, kicking, and

punching. Roughly 2 minutes into the video, she manages to roll over onto her

stomach on the couch. Easter, however, does not relent. Instead, he uses his

hands to force T.A.’s legs and buttocks apart from the rear and continues

performing oral sex on her. According to T.A., Easter “pull[ed her] butt so far

apart” that it “felt like [she] was being ripped.” Tr. Vol. II, p. 121. T.A. also

described Easter “rubbing” and “grabbing” her vagina. Id. at 124.

[10] When the assault finally ended, T.A. called 911 and provided the responding

police officers with the video clips from her security camera. The officers

arrested Easter and soon learned that a no-contact order prohibited him from

communicating with T.A. The State later charged Easter with seven crimes:

• Count I Level 3 felony rape by force

• Count II Level 3 felony rape by disregarding refusal

• Count III Level 5 felony criminal confinement

• Count IV Level 6 felony sexual battery

• Count V Class A misdemeanor domestic battery

• Count VI Class A misdemeanor battery

• Count VII Class A misdemeanor invasion of privacy

The State also alleged that Easter was a habitual offender.

[11] After a bench trial, the trial court found Easter guilty as charged but only

entered judgments of conviction on Counts I, II, III, and VII. Easter admitted

to being a habitual offender in a separate proceeding. The trial court then

sentenced him to a total of 21 years in prison, including a 13-year habitual

Court of Appeals of Indiana | Opinion 25A-CR-1229 | May 4, 2026 Page 5 of 25

offender enhancement, with 2 years suspended to probation. His individual

sentences were as follows:

• Count I (rape by forceful compulsion) – 21 years in prison, including a

13-year habitual offender enhancement, with 2 years suspended to

probation.

• Count II (rape by disregarding refusal) – 21 years in prison, including a

13-year habitual offender enhancement, with 2 years suspended to

probation, all served concurrently with Counts I and III.

• Count III (criminal confinement) – 3 years in prison, all served

concurrently with Counts I and II.

• Count VII (invasion of privacy) – 365 days suspended to probation,

served consecutively to Count I.

Discussion and Decision

[12] Easter appeals his convictions on Count II (rape by disregarding refusal) and

Count III (criminal confinement), arguing that each places him in substantive

double jeopardy based on his conviction on Count I (rape by force). “[T]he

substantive bar to double jeopardy restrains the courts’ power to impose

multiple punishments for the same offense[.]” A.W. v. State, 229 N.E.3d 1060,

1064 (Ind. 2024) (emphasis omitted). Whether multiple convictions place a

defendant in substantive double jeopardy presents a question of law that we

review de novo. Id.

I. Choosing the Analytical Framework

[13] As an initial matter, we must determine the appropriate framework under

which to analyze each of Easter’s substantive double jeopardy claims. In Wadle

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and Powell, our Supreme Court adopted two separate tests for addressing such

claims. As originally explained by the Court, the Wadle test applies “when a

single criminal act or transaction violates multiple statutes with common

elements,” 151 N.E.3d at 247, and the Powell test applies “when a single

criminal act or transaction violates a single statute and results in multiple

injuries.” 151 N.E.3d at 263. Recently, however, in Moyers, the Court redirected

the inquiry to the “text and structure” of the statute or statutes at issue. No.

26S-CR-86, slip op. at 7, 9, 10, 13. According to the Court: “[T]he applicability

of Wadle or Powell does not turn on whether the convictions arise from the same

statute or multiple statutes.” Id. at 11-12. “Rather, the proper test depends on

whether the convictions are for offenses stemming from one base offense or

two.” Id. at 12.

[14] To illustrate the different ways in which our Legislature uses statutory text and

structure to define base offenses, the Moyers Court highlighted three categories

of criminal statutes:

Category One includes statutes that define a base offense and

elevated offenses as a single statutory offense, rendering Powell

the proper test. . . . Category Two includes statutes that define

separate base offenses and, therefore, distinct statutory offenses,

meaning Wadle applies. And Category Three includes statutes

that create a base offense using alternative elements. These

statutes must be read carefully to discern whether the Legislature

intended to define one statutory offense (meaning Powell applies)

or multiple (meaning Wadle applies).

Id. at 8 (bolding added).

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[15] Here, we have little trouble concluding that Wadle applies to Easter’s

convictions on Count I (rape by force) and Count III (criminal confinement), as

the statutes under which the counts were charged clearly define two distinct

base offenses. See Ind. Code § 35-42-4-1(a)(1) (rape) (2023); Ind. Code § 35-42-

3-3(a), (b)(1)(C) (2023) (criminal confinement). But Easter’s convictions on

Count I (rape by force) and Count II (rape by disregarding refusal) require a

closer examination.

[16] As the Moyers Court recognized, Indiana’s rape statute generally falls into

“Category Three” because it “create[s] a base offense with alternative elements

such that distinct criminal acts can constitute the base offense.” No. 26S-CR-86,

slip op. at 12 (citing Ind. Code § 35-42-4-1(a), which defines four circumstances

in which “sexual intercourse” constitutes Level 3 felony rape). But the Court

also noted that the rape statute shares characteristics with “Category One” by

creating an “elevated form[]” of its base offense. Id. (citing Ind. Code § 35-42-4-

1(b), which provides circumstances that enhance Level 3 felony rape to a Level

1 felony). Additionally, the statute shares characteristics with “Category Two”

because it defines multiple base offenses. Id. (citing Stone v. State, 226 N.E.3d

829, 833 (Ind. Ct. App. 2024), which ruled “forcible sexual intercourse” and

“forcible sexual conduct” are distinct statutory offenses under Indiana’s rape

statute).

[17] To be clear, Moyers does not require us to categorize the rape statute in the

abstract to determine whether Wadle or Powell applies to Easter’s dual rape

convictions. Categorization is simply a tool that may assist courts in counting

Court of Appeals of Indiana | Opinion 25A-CR-1229 | May 4, 2026 Page 8 of 25

the number of base offenses at issue. When a statute solely falls into “Category

1” or “Category 2,” the choice of Wadle or Powell is clear. Id. at 8; supra ¶ 14.

But when faced with statutory nuance and complexity, as with the rape statute,

we find we must also consider the charging instrument to determine whether a

defendant’s convictions were for the same base offense (meaning Powell applies)

or different base offenses (meaning Wadle applies).

[18] Here, Counts I and II alleged that Easter committed rape under subsection

(a)(1) and (a)(4) of the rape statute, respectively. Subsection (a) provides:

[A] person who knowingly or intentionally has sexual intercourse

with another person or knowingly or intentionally causes another

person to perform or submit to other sexual conduct (as defined

in IC 35-31.5-2-221.5) when:

(1) the other person is compelled by force or imminent threat of

force;

(2) the other person is unaware that the sexual intercourse or

other sexual conduct (as defined in IC 35-31.5-2-221.5) is

occurring;

(3) the other person is so mentally disabled or deficient that

consent to sexual intercourse or other sexual conduct (as defined

in IC 35-31.5-2-221.5) cannot be given; or

(4) the person disregarded the other person’s attempts to

physically, verbally, or by other visible conduct refuse the

person’s acts;

commits rape, a Level 3 felony.

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Ind. Code. § 35-42-4-1(a).1

[19] As used in the rape statute, “sexual intercourse” means “an act that includes

any penetration of the female sex organ by the male sex organ.” Ind. Code § 35-

31.5-2-302. “Other sexual conduct” means “an act involving: (1) a sex organ of

one . . . person and the mouth or anus of another person; or (2) the penetration

of the sex organ or anus of a person by an object.” Ind. Code § 35-31.5-2-221.5.

See generally Carranza v. State, 184 N.E.3d 712, 715 (Ind. Ct. App. 2022) (“A

finger qualifies as an ‘object’ in this context.”). Thus, the text of the rape statute

creates at least five base offenses: (1) rape by sexual intercourse; (2) rape by oral

sex; (3) rape by anal sex; (4) rape by penetrating sex organ with object; and (5)

rape by penetrating anus with object. See Thompson v. State, 246 N.E.3d 1251,

1255 (Ind. Ct. App. 2024) (reaching similar conclusion).2

1

We note that subsections (a)(1) through (4) of the rape statute collectively require that the victim either

refuse or be unable to consent to the defendant’s sexual conduct. See Frye v. State, 240 N.E.3d 727, 733 (Ind.

Ct. App. 2024) (observing that the inability to consent is a “unifying theme” to the circumstances provided in

Ind. Code § 35-42-4-1(a)(1)-(4)). Though Counts I and II were charged under subsections (a)(1) and (a)(4) of

the rape statute, respectively, we use the terms “rape by force” and “rape by disregarding refusal” throughout

this opinion for clarity only. We do not view these statutory subsections as establishing distinct base offenses

of rape. Cf. Mathews v. State, 849 N.E.2d 578, 586-87 (Ind. 2006) (discussing similarly structured arson statute,

Ind. Code § 35-43-1-1(a)(1)-(4), and stating: “[The statute] does not define different B felony crimes that

might be called ‘arson endangering life’ or ‘arson causing pecuniary loss’ or ‘arson of a dwelling’”; rather “it

defines Class B felony arson as knowingly or intentionally damaging one person’s property by fire with any

one of the alternative criteria in subsections (a)(1)-(4).”).

2

Because a person can both “perform” and “submit to” at least some types of other sexual conduct, the rape

statute likely creates more than five base offenses. Ind. Code § 35-42-4-1(a); see Heckard v. State, 118 N.E.3d

823, 832 (Ind. Ct. App. 2019) (affirming dual child molesting convictions based on defendant’s performance

of and submission to oral sex, respectively).

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[20] From all of this, we can conclude that Powell applies if Easter’s rape convictions

were based on him twice engaging in the same type of sex act with T.A., and

Wadle applies if his convictions were based on him committing two different

types of sex acts. Cf. Jones v. State, 159 N.E.3d 55, 62 (Ind. Ct. App. 2020)

(applying Powell to defendant’s dual battery convictions based on two acts of

throwing hot water on victim); Carranza, 184 N.E.3d at 716 (applying Wadle to

defendant’s dual child molesting convictions based on oral sex and penetrating

sex organ with object, respectively). But Counts I and II both alleged rape by

“other sexual conduct” without specifying the type of sex act underlying each

offense. App. Vol. II, p. 27. Thus, from the face of the charging instrument, we

can only eliminate rape by sexual intercourse as the base offense for either

count.

[21] Neither the rape statute nor the charging instrument resolves whether Easter’s

dual rape convictions were for the same base offense (i.e., the same type of other

sexual conduct). And Moyers provides no further guidance as to how we should

make that determination. Seeing no other way, we look to the evidence

adduced at trial. This effectively means that, to decide whether Wadle or Powell

applies, we must take a sneak peek at the final step of both tests—the

continuous crime inquiry—and consider how the State presented its case to the

factfinder. See infra ¶¶ 28, 42 (identifying the continuous crime inquiry as the

final step of each test); Afolabi v. State, No. 24A-CR-3081, slip op. at 27 (Ind. Ct.

App. April 15, 2026) (recognizing that, to apply the continuous crime doctrine,

“we must first identify which of the defendant’s actions to analyze”).

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[22] Here, the evidence adduced at trial shows that both of Easter’s rape convictions

were based on him causing T.A. to submit to oral sex. Although T.A. testified

that Easter grabbed her vagina and pulled her buttocks apart, there is no

evidence that vaginal or anal penetration occurred during these acts. Moreover,

the prosecutor relied solely on evidence of oral sex during closing statements,

arguing: “The only thing [Easter] won’t admit to is the rape. But even looking

at the video evidence, you can see his head is clearly between [T.A.’s] legs in

various points of the video and [her testimony] is very clear that his tongue did

penetrate her vagina.” Tr. Vol. II, p. 197.

[23] Having determined that both of Easter’s rape convictions were based on the

same type of other sexual conduct, we can finally answer the question posed by

Moyers: do the convictions stem from “one base offense or two”? No. 26S-CR-

86, slip op. at 12. We conclude they stem from one base offense. This initial

counting process tells us that Powell applies to Easter’s substantive double

jeopardy claim as to Count I (rape by force) and Count II (rape by disregarding

refusal). As previously stated, we also find that Wadle applies to Easter’s claims

as to Count I (rape by force) and Count III (criminal confinement).

II. Applying Powell to Counts I and II

[24] We first consider Easter’s claim that his conviction on Count II (rape by

disregarding refusal) places him in substantive double jeopardy based on his

conviction on Count I (rape by force). In Powell, our Supreme Court established

two progressive steps for analyzing such a claim. 151 N.E.3d at 264; see Moyers,

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No. 26S-CR-86, slip op. at 12. Those steps generally require courts to consider:

(1) how the charging statute defines its unit of prosecution; and (2) whether the

defendant’s acts constitute a single transaction. Powell, 151 N.E.3d at 264.

A. Step One – Unit of Prosecution

[25] At Step 1 of the Powell analysis, “we review the text of the statute itself.” Id. “If

the statute, whether expressly or by judicial construction, indicates a unit of

prosecution, then we follow the legislature’s guidance and our analysis is

complete.” Id. Here, because Indiana’s rape statute does not expressly identify a

unit of prosecution, see Ind. Code § 35-42-4-1, we must identify it through

judicial construction by determining whether the statute is “conduct-based” or

“results-based.” Powell, 151 N.E.3d at 265.

[26] “A conduct-based statute . . . consists of an offense defined by certain actions or

behavior (e.g., operating a vehicle) and the presence of an attendant

circumstance (e.g., intoxication).” Id. at 265-66 (emphasis in original). “Under

these statutes, the crime is complete once the offender engages in the prohibited

conduct, regardless of whether that conduct produces a specific result (e.g.,

multiple victims). Id. at 266 (emphasis in original). “A result-based statute, on

the other hand, consists of an offense defined by the defendant’s actions and the

results or consequences of those actions.” Id. (emphasis in original). These

statutes permit “multiple convictions when multiple consequences flow from a

single criminal act.” Id.

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[27] Indiana’s rape statute sets forth a conduct-based crime because its focus is the

defendant’s actions—having sexual intercourse with the victim or causing them

to perform or submit to other sexual conduct without their consent—not the

consequences of those actions. Cf. Moyers, No. 26S-CR-86, slip op. at 15

(concluding criminal confinement is a conduct-based crime because “the

gravamen of the offense is a person’s act confining another person without their

consent.”). The “ultimate question,” therefore, is whether the evidence shows

that Easter committed one or two discrete acts of rape. Id.

B. Step Two – Single Transaction

[28] At Step 2 of the Powell analysis, “a court must determine whether the facts—as

presented in the charging instrument and as adduced at trial—indicate a single

offense or whether they indicate distinguishable offenses.” Powell, 151 N.E.3d

at 264. “To answer this question, we ask 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. “[T]his step effectively absorbs

the common-law continuous crime doctrine.” No. 26S-CR-86, slip op. at 14

(citing Jones v. State, 159 N.E.3d 55, 62 (Ind. Ct. App. 2020)).3

3

Our Supreme Court has twice indicated that a Powell analysis proceeds to Step 2 only when, at Step 1, the

text of the subject statute is deemed “ambiguous” as to its unit of prosecution. Powell, 151 N.E.3d at 264;

Moyers, No. 26S-CR-86, slip op. at 14. Moyers, however, is the only case in which the Court has deemed a

statute’s unit of prosecution unambiguous at Step 1. No. 26S-CR-86, slip op. at 15. In doing so, the Court

observed: “[W]e need just Powell’s first step to ascertain that the criminal confinement statute permits only

one conviction for a single period of continuous confinement.” Id. But after identifying the charging statute’s

conduct-based unit of prosecution, the Court went on to consider whether the evidence showed that the

defendant “committed one or two discrete actions of criminal confinement.” Id.

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[29] Here, as discussed above, supra ¶ 22, the evidence adduced at Easter’s trial

shows that both of his rape convictions were based on his performance of oral

sex. We must therefore determine whether Easter committed this sex act on one

or two discrete occasions. The State argued during closing statements that “you

can see [Easter’s] head is clearly between [T.A.’s] legs in various points of the

video.” Tr. Vol. II, p. 197. But each of those “points” occurred during a roughly

1-minute span of the nearly 3-minute assault, and they were interrupted only by

T.A.’s physical resistance. We therefore find that Easter committed a single

continuous act of oral sex and, thus, just one rape.

[30] As Easter was convicted of the same offense on both Count I (rape by force)

and Count II (rape by disregarding refusal), the dual convictions place him in

substantive double jeopardy, and his conviction on Count II is contrary to law.

We therefore remand for the trial court to vacate Easter’s conviction on Count

II and its corresponding 21-year concurrent sentence.

According to the Moyers Court, its “discrete actions” analysis was “guided by Bartlett v. State, 711 N.E.2d 497

(Ind. 1999),” a case in which the Court had to “define the temporal span” of a kidnapping. No. 26S-CR-86,

slip op. at 15-16. The Bartlett Court did so by applying the “continuing crime doctrine,” 711 N.E.2d at 500, a

doctrine the Moyers Court later recognized as having been absorbed by Step 2 of the Powell analysis. No. 26S-

CR-86, slip op. at 14. But the Moyers Court ultimately concluded—purportedly at Step 1—that “the evidence

showed a single continuous confinement occurred.” Id. at 15 (emphasis added). If discrete offenses and a

continuous crime are two sides of the same coin, it seems that a Powell analysis also proceeds to Step 2—at

least in part—when a statute’s unit of prosecution is deemed unambiguously conduct-based at Step 1. Cf.

Walker v. State, 932 N.E.2d 733, 737 (Ind. Ct. App. 2010) (concluding the continuing crime doctrine does not

apply to factual situations where a defendant is charged with two or more “distinct chargeable crimes”).

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III. Applying Wadle to Counts I and III

[31] We next turn to Easter’s claim that his conviction on Count III (criminal

confinement) places him in substantive double jeopardy based on his conviction

on Count I (rape by force). In Wadle, our Supreme Court established three

progressive steps for analyzing such a claim. 151 N.E.3d at 247; see Moyers, No.

26S-CR-86, slip op. at 12. Those steps generally require courts to consider

whether: (1) the charging statutes permit multiple punishments; (2) either

offense is included in the other; and (3) the defendant’s acts constitute a single

transaction. Wadle, 151 N.E.3d at 253.

A. Step 1 – Multiple Punishments

At Step 1 of the Wadle analysis, we consider the language of the charging

statutes to determine whether one “clearly permits multiple punishment, either

expressly or by unmistakable implication.” Id. at 248. If so, the convictions do

not place the defendant in substantive double jeopardy, and our inquiry ends.

Id. But if the charging statutes do not clearly permit multiple punishment, we

proceed to Step 2. Id.

[32] Here, Easter’s convictions on Count I (rape by force) and Count III (criminal

confinement) do not place him in substantive double jeopardy at Step 1 of the

Wadle analysis because neither of the statutes under which Easter was charged

clearly permits multiple punishments. See Ind. Code § 35-42-4-1 (rape,

generally); Ind. Code § 35-42-3-3 (criminal confinement, generally). We

therefore proceed to Step 2.

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B. Step 2 – Included Offenses

[33] At Step 2 of the Wadle analysis, we consider the subject offenses to determine

whether one is either “inherently” or “factually” included in the other. A.W.,

229 N.E.3d at 1067 (clarifying Wadle Step 2). If not, the convictions do not

place the defendant in substantive double jeopardy, and our inquiry ends. Id.

But if one offense is included in the other, we proceed to Step 3. Id.

i. Inherent Inclusion

[34] To determine if an offense is inherently included in another, we apply our

included-offense statute, Indiana Code § 35-31.5-2-168. Wadle, 151 N.E.3d at

253. That statute defines an “included offense” as 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.

[35] Here, Count I alleged that Easter committed rape under Indiana Code § 35-42-

4-1(a)(1). That statute provides:

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[A] person who knowingly or intentionally . . . causes another

person to perform or submit to other sexual conduct (as defined

in IC 35-31.5-2-221.5) when . . . the other person is compelled by

force or threat or imminent threat of force . . . commits rape, a

Level 3 felony.

Ind. Code § 35-42-4-1(a)(1).

[36] Count III alleged that Easter committed criminal confinement under Indiana

Code § 35-42-3-3. That statute provides: “A person who knowingly or

intentionally confines another person without the other person’s consent

commits criminal confinement,” a Level 6 felony. Ind. Code § 35-42-3-3(a).

However, the offense is a Level 5 felony if “it results in bodily injury to a person

other than the confining person.” Ind. Code § 35-42-3-3(b)(1)(C). To “confine”

in this context “means to substantially interfere with the liberty of a person.”

Ind. Code § 35-42-3-1.

[37] As this Court has previously recognized, “the act of forcible rape necessarily

entails some degree of confinement.” Zamilpa v. State, 229 N.E.3d 1079, 1084

(Ind. Ct. App. 2024). Thus, criminal confinement is an “included offense” of

forcible rape under our included-offense statute because the former “is

established by proof of . . . less than all the material elements required to

establish” the latter. Ind. Code § 35-31.5-2-168(3). Accordingly, Count III

(criminal confinement) is inherently included in Count I (rape by force).

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ii. Factual Inclusion

[38] To determine if an offense was factually included in another, we “examine only

the facts as presented on the face of the charging instrument.” A.W. 229 N.E.3d

at 1067 (emphasis omitted). “This includes examining the ‘means used to

commit the crime charged,’ which must ‘include all of the elements of the

alleged lesser included offense.’” Id. (quoting Wadle, 151 N.E.3d at 251).

“[W]here ambiguities exist in a charging instrument about whether one offense

is factually included in another, courts must construe those ambiguities in the

defendant’s favor, and thus find a presumptive double jeopardy violation at

Step 2.” Id. at 1069 (internal citation omitted). “In this event, the State can later

rebut this presumption at Step 3.” Id.

[39] Ambiguity as to one charged crime’s factual inclusion in another exists when it

is “conceivable,” but not certain, from the facts presented on the face of the

charging instrument that the means used to commit the alleged greater offense

includes all the elements of the alleged lesser offense. A.W., 229 N.E.3d at

1069.4 Here, the charging instrument is ambiguous as to whether Count III

(criminal confinement) was factually included in Count I (rape by force)

because the allegations in those counts merely tracked the language used in

4

Accord Vanbibber v. State, 268 N.E.3d 315, 321 (Ind. Ct. App. 2025); Bradshaw v. State, 239 N.E.3d 864, 871

(Ind. Ct. App. 2024) (Felix, J., dissenting).

Court of Appeals of Indiana | Opinion 25A-CR-1229 | May 4, 2026 Page 19 of 25

charging statutes; they did not provide any facts regarding the means used to

commit the charged offenses. Specifically:

• Count I alleged that “[Easter] did knowingly cause another person (sic)

to perform or submit to other sexual conduct . . . with [T.A.] when [T.A.]

was compelled by force”; and

• Count III alleged that “[Easter] did knowingly confine [T.A.] without the

consent of [T.A.], said act resulting in bodily injury to [T.A.].”

App. Vol. II, p. 27.

[40] Given the charging instrument’s dearth of factual allegations, we can easily

conceive of facts under which Count III (criminal confinement) may or may not

be factually included in Count I (rape by force). It all depends on whether the

defendant confined the victim by a means other than by the force used to

accomplish the rape. This ambiguity gives rise to a presumption of double

jeopardy at Step 2 of the Wadle analysis. A.W. 229 N.E.3d at 1067. And the

State has the burden of rebutting this presumption at Step 3. Id.

C. Step 3 – Single Transaction

[41] At Step 3 of the Wadle analysis, we consider the facts underlying the challenged

convictions, “as presented in the charging instrument and as adduced at trial,”

to determine whether the defendant’s actions were “so compressed in terms of

time, place, singleness of purpose, and continuity of action as to constitute a

single transaction.” Wadle, 151 N.E.3d at 249 (citation omitted). If so, the

convictions place the defendant in substantive double jeopardy. Id. But if facts

Court of Appeals of Indiana | Opinion 25A-CR-1229 | May 4, 2026 Page 20 of 25

show two distinct offenses, double jeopardy does not arise. Id. Either way, our

inquiry ends.

[42] “To accomplish Step 3, however, we must first identify which of the

defendant’s actions to analyze.” Afolabi, No. 24A-CR-3081, slip op. at 27. “This

is not a call for post hoc explanations of how the evidence could have been

allocated between the offenses to avoid substantive double jeopardy.” Id.

Rather, “[t]he State must demonstrate that it made clear to the fact-finder at

trial that the apparently included charge was supported by independent

evidence such that the State made a ‘distinction between what would otherwise

be two of the same offenses.’” Ratliff v. State, 242 N.E.3d 1070, 1078-79 (Ind.

Ct. App. 2024) (quoting A.W., 229 N.E.3d at 1071), trans. denied.5 Failure to

hold the State to this standard would render Step 2’s presumption of double

jeopardy largely without meaning.

[43] On appeal, the State attempts to rebut the presumption of double jeopardy as to

Count I (rape by force) and Count III (criminal confinement) by claiming “the

criminal confinement ended before the rape began.” Appellee’s Br., p. 11. More

specifically, the State contends the criminal confinement occurred when Easter

“grabbed [T.A.’s] neck” in a “chokehold” position—“impeding her

breathing”—and “moved her to the couch.” Appellee’s Br., p. 11. In contrast,

5

Accord Eversole v. State, 251 N.E.3d 604, 608-09 (Ind. Ct. App. 2025), trans. denied; Bolcerek v. State, 255

N.E.3d 1206, 1219 (Ind. Ct. App. 2025), trans. denied; Denny v. State, 272 N.E.3d 210, 216 (Ind. Ct. App.

2025); Brothers v. State, 271 N.E.3d 589, 596 (Ind. Ct. App. 2025).

Court of Appeals of Indiana | Opinion 25A-CR-1229 | May 4, 2026 Page 21 of 25

the State contends the rape occurred “[a]fter Easter pulled T.A. to the couch,”

when “he moved his hands from her neck” and “forced her to submit to oral

sex by wrapping his legs around her and holding her down.” Id.

[44] But the State did not make this factual distinction clear to the factfinder at trial.

Rather, the State blended the force element of the rape with the confinement,

creating a single undifferentiated narrative. Specifically, the State described the

crimes as follows during closing statements:

[W]e have the rape by force. The force is very clear from the

video. He threw her on the couch. He held her down. She

mentioned difficulty breathing. Not that he was strangling her,

but there was a difficulty with breathing. . . . We [also] have the

confinement, holding her down on the couch. She stated that

while this was happening, it hurt. It was painful. It felt like she

was being ripped in half.

Tr. Vol. II, p. 196 (emphasis added). Similarly, at sentencing, when the trial

court raised a double jeopardy concern as to Count III (criminal confinement)

and Count V (domestic battery), the State explained: “[C]ount III is the holding

her down on the couch.” Id. at 234 (emphasis added).

[45] To find that the State rebutted the presumption of double jeopardy at Step 3 of

the Wadle analysis, we must be convinced that the factfinder could have—and

did—credit distinct actions by the defendant as supporting each of the

challenged offenses. See A.W., 229 N.E.3d at 1071; Ratliff, 242 N.E.3d at 1078-

79. Because our inquiry is focused on what the State made clear to the

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factfinder at trial, the State cannot satisfy its burden by parsing the facts in

hindsight. Nor will we do the parsing on appeal. Here, neither evidence nor

argument made clear at trial that Easter’s confinement and rape of T.A. were

distinct offenses. The State therefore cannot rebut the presumption of double

jeopardy.6

[46] As the State has failed in its burden to rebut the presumption of double jeopardy

as to Count I (rape by force) and Count III (criminal confinement), Easter’s

conviction on Count III is contrary to law. We therefore remand for the trial

court to vacate that conviction and its corresponding 3-year concurrent

sentence.

Conclusion

[47] Easter’s convictions on Count II (rape by disregarding refusal) and Count III

(criminal confinement) each place him in substantive double jeopardy based on

his conviction on Count I (rape by force). As his convictions on Counts II and

6

The State points to the trial court’s sentencing order as evidence that double jeopardy did not occur,

highlighting that the court handwrote “Grab around neck” next to Count III (criminal confinement).

Appellant’s App. Vol. II, p. 195. According to the State, this notation shows the court “concluded that Easter

used different means to confine and rape T.A.,” such that “the criminal confinement ended at the couch . . .

before the rape[] began.” Appellee’s Br., pp. 11-12. But the meaning of the court’s notation is far from clear,

particularly because the court did not make similar notations beside Count I (rape by force) or Count II (rape

by disregarding refusal). Had the court intended to distinguish the conduct underlying the confinement

charge from the conduct underlying the rape charges, we would expect it to have annotated all three, not just

one.

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III are contrary to law, we remand for the trial court to vacate those convictions

and their corresponding concurrent sentences.7

7

Over the last six years, our Supreme Court has worked to bring clarity to Indiana’s substantive double

jeopardy doctrine. Wadle and Powell represent a valiant attempt to replace the “patchwork of conflicting

precedent” that preceded them with a coherent, statute-based framework. Wadle, 151 N.E.3d at 235. But the

two-test dichotomy those cases created, and which A.W. and Moyers subsequently refined, has proven

difficult to administer in practice. The persistent struggle to choose between Wadle and Powell—neither of

which “applies neatly” in every case, Moyers, No. 26S-CR-86, slip op. at 6—suggests that substantive double

jeopardy claims might be resolved more efficiently if the analytic sequence was recalibrated.

The Wadle and Powell tests arise from the same premise: substantive double jeopardy is a matter of legislative

intent. Wadle, 151 N.E.3d at 248; Powell, 151 N.E.3d at 264. What separates them is their taxonomy: Wadle

governs the included-offense claims, while Powell governs multiplicity claims. But regardless of whether a

defendant has been convicted of an offense and an included offense (Wadle) or of the same offense multiple

times (Powell), the overriding question is the same—did the Legislature authorize multiple punishments for

what is, in substance, a single criminal act or transaction? The latter part of this inquiry is inescapably factual

and, in many cases, dispositive. Yet, our current substantive double jeopardy framework buries any factual

analysis behind a series of abstract statutory steps.

As the dissent in Moyers aptly recognized, beginning a substantive double jeopardy analysis by applying our

included-offense statute to the facts of the case, as charged, can often kill two birds with one stone. It employs

the most consistently direct path for determining whether the Legislature authorized multiple punishments—

the included-offense statute—while also examining the most concrete means by which the State can articulate

the facts underlying each offense—the charging instrument. And when coupled with the presumption of

double jeopardy recognized in A.W., 29 N.E.3d at 1069, this early factual inquiry ensures at the outset of the

analysis that the State discharged its most basic obligation at trial: explaining to the factfinder how the

evidence proves the charged offenses.

Perhaps the only downside to beginning with a factual-inclusion inquiry is that our included-offense statute

does nothing to show legislative intent in the realm of multiplicity. But included-offense claims substantially

outnumber multiplicity claims on our docket, and most are resolved either due to factual inclusion or an

unrebutted presumption of double jeopardy. Meanwhile, included-offense claims that survive the initial

factual analysis proceed to a continuous crime inquiry, which multiplicity claims also require. It is not until

here, it seems, that the most troublesome abstract statutory steps from Wadle and Powell become relevant. See

Walker v. State, 932 N.E.2d 733, 737 (Ind. Ct. App. 2010) (indicating that the continuous crime doctrine only

applies in two scenarios: (1) when a defendant is twice charged with the same base offense; and (2) when one

charged offense is inherently included in the other), cited with approval by Wadle, 151 N.E.3d at 249 n.26; see

also Hines v. State, 30 N.E.3d 1216, 1219-20 (Ind. 2015). And at least one of these steps may be less

troublesome if the facts underlying the offenses have already been uncovered. See supra ¶¶ 20-23.

Admittedly, no framework will resolve every substantive double jeopardy claim with ease—the doctrine’s

complexity is a function of the Legislature’s own layered statutory scheme. But the persistent difficulty with

Wadle and Powell stems, at least in part, from a common structural choice: neither treat the factual-inclusion

inquiry as a starting point. A framework that begins with the facts rather than abstract statutory inquiries will

be more efficient. Moreover, it will better serve the doctrine’s animating purpose—ensuring that no defendant

is punished twice for what is, in substance, the same offense.

Court of Appeals of Indiana | Opinion 25A-CR-1229 | May 4, 2026 Page 24 of 25

[48] Remanded.

Bradford, J., concurs in result.

DeBoer, J., concurs.

ATTORNEY FOR APPELLANT

Ellen M. O’Connor

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

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