Ivy Sisson v. State of Indiana

Opinion

FILED

Sep 04 2026, 8:56 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Court of Appeals of Indiana Ivy Sisson,

Appellant-Defendant

v.

State of Indiana,

Appellee-Plaintiff

September 4, 2026

Court of Appeals Case No.

25A-CR-3174

Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No.

49D27-2109-F3-29143

Opinion by Judge DeBoer

Judge Mathias concurs in part and concurs in result in part with a separate opinion.

Judge Kenworthy concurs.

DeBoer, Judge.

Case Summary [1] After abducting his estranged wife from her employer’s parking lot and

subjecting her to a violent ordeal in which he repeatedly beat and threatened to kill her, Ivy Sisson was charged a litany of offenses. They included kidnapping as Level 3 and Level 5 felonies, criminal confinement as Level 3 and Level 5 felonies, domestic battery as a Level 5 felony, and two counts of intimidation as Level 5 felonies. A jury found Sisson guilty as charged, the trial court convicted him of all counts, and Sisson received an aggregate sentence of thirty-one years. Sisson challenges his convictions on appeal and raises two issues. First, he contends the trial court erroneously admitted evidence seized after a warrantless search of his girlfriend’s condo. Second, he argues that all his convictions except for Level 3 felony kidnapping and Level 5 felony domestic battery violate substantive double jeopardy and must be vacated.

[2] We first hold that the warrantless search of the condo violated neither the Fourth Amendment to the U.S. Constitution nor Article 1, Section 11 of the Indiana Constitution, as Sisson’s girlfriend gave his arresting officers voluntary consent to search her home and garage. Thus, evidence seized from her residence was properly admitted at trial. Second, we conclude that Sisson’s multiple convictions put him in substantive double jeopardy and thus affirm only his convictions for Level 3 felony kidnapping and Level 5 domestic battery. We remand to the trial court with instructions to vacate Sisson’s other convictions and their corresponding sentences.

Facts and Procedural History [3] Sisson and Kristina Hannah 1 met and started dating sometime around 1999.

They had a son together shortly after they started dating but separated sometime after his birth. Sisson and Hannah rekindled their relationship in 2012 and were married in 2015. In 2021, they separated again and discussed getting a divorce.

[4] At the time of their second separation, Hannah worked in the IU Health lab at the Methodist Medical Plaza South in Indianapolis. On September 16, 2021, Hannah was scheduled to arrive at work between 5:00 and 5:30 a.m. At around 4:45 that morning, a security guard monitoring the plaza’s parking lot saw a middle-aged or older black man walking from behind a COVID-19 testing tent. Assuming the man was homeless, the security guard told him that he needed to leave. Apparently without objection, the man walked out of the parking lot toward the main road. Shortly thereafter, the guard noticed an unfamiliar white car parked in the lot. When he peered through its windows, he saw rope and a roll of “thicker-type tape” inside. Transcript Vol. 2 at 224.

1 When she and Sisson were married, Hannah’s last name was the same as Sisson’s. She later changed it to Hannah, which is how we refer to her throughout this opinion.

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Thinking the car might belong to someone working construction at the medical center, the guard left it alone and drove to a spot at the northwest corner of the building where he could monitor staff arriving for their morning shifts.

[5] A few minutes later, out of the corner of his eye, the security guard saw the white car “spe[e]d away” to the south side of the parking lot, out of the guard’s view. Id. at 217. Fifteen to twenty minutes after that, the car drove back to the north side of the parking lot with its headlights off before doing a U-turn and exiting the lot. After observing that odd behavior, the security guard called the police, and an IMPD officer was dispatched to the plaza at around 5:40 a.m. The officer spoke with the guard and drove around the building, but he didn’t see anything notable and left the scene.

[6] Meanwhile, Hannah had arrived for the start of her shift at around 5:30 a.m. She parked her SUV near the COVID-19 tent and started walking toward the building’s entrance. Moments later, without warning, Sisson approached her from behind and hit her on the back of the head with a handgun. The pair briefly struggled as Sisson tried to force Hannah back into her vehicle, but he couldn’t gain control of her keys. Sisson then grabbed Hannah by the arm, pointed the gun at her back, and told her to start walking. She tried to break free from his grip, but he held onto her “[v]ery forceful[ly].” Tr. Vol. 3 at 20. He led Hannah at gunpoint across the plaza’s parking lot, through a wooded area, and into the parking lot of a hardware store. There, Sisson had parked his white Nissan Sentra. 2

[7] Sisson initially tried to put Hannah into the trunk of his car. But after Hannah begged him not to, he placed her in the back seat, took her cell phone and book bag from her, and started driving. He pulled onto I-65 North and told Hannah he was driving to a remote location where he would “bury [her] in the cornfields.” Id. at 22. Later during the drive, he explained that he planned to kill her so he could collect on an insurance policy.

[8] At some point during the drive, Sisson demanded that Hannah tell him the passcode to unlock her phone. When she refused, he used the gun to hit her on her knees, arms, hand, and head. After landing one of these blows, Sisson dropped the gun and had to pull over at a rest stop to pick it back up. When the car stopped, Hannah tried to escape, but Sisson had enabled the child locks so she could not open the door. Sisson retrieved the gun, got back on the interstate, and continued to beat Hannah until she finally gave him her passcode. Sisson then used Hannah’s phone to text her coworkers, who had noticed her absence from work and were trying to reach her.

[9] After driving for about an hour, Sisson exited the interstate and “went out through the cornfields.” Id. at 25. He stopped, made Hannah get out of the

2 The Nissan was registered to Hannah, but Sisson had it in his possession before, during, and after Hannah’s abduction.

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 5 of 55 car, retrieved a shovel from the trunk, and led Hannah at gunpoint down into a ditch. He forced her to her knees, held the gun to the back of her head, told her he was going to kill her, and started reciting the Lord’s Prayer. As he did, Hannah begged for her life. Sisson eventually agreed not to kill Hannah, telling her that “he still loved [her]” and saying “something about [Hannah’s] daughter needing [her] and how much he loved her.” Id. at 26. He helped Hannah out of the ditch, put her back in the car, and drove her to IU Health West Hospital in Avon.

[10] Sisson dropped Hannah outside the hospital’s entrance and drove away, which was captured by the hospital’s security cameras. Though Sisson is not visible in the hospital security footage, he was captured on Hannah’s home security system three days later driving the same white Nissan that dropped her off at the hospital. Hannah was treated for two lacerations on the back of her scalp and her left forehead, and she had bruises on her face, shoulder, wrist, fingers, knees, and thigh, as well as a third laceration on her wrist. Many of her fingers were swollen, and the ring finger on her left hand suffered a minor fracture. While in the hospital, Hannah told a physician’s assistant “that she had been physically assaulted . . . [b]y her husband.” Id. at 58.

[11] Hannah’s coworkers and family reported her missing shortly after she failed to show up for work, and police were already investigating her disappearance when she arrived at the hospital. After learning that Hannah had been found, an IMPD detective went to the hospital to speak with her. Officers put together an application for a warrant to arrest Sisson based on the information Hannah provided. An arrest warrant was issued on September 21, and lead Detective Anthony Weaver asked the U.S. Marshals Service for help locating Sisson.

[12] A day later, law enforcement tracked Sisson to a condo on Deerwood Court in Indianapolis where his girlfriend, Michelle Dunklin, lived. Sisson was arrested at Dunklin’s residence on September 22, and officers saw his Nissan while performing what they described as “a protective sweep of the garage area which had separate access.” Exhibits Vol. 1 at 14. Later that day, officers obtained and executed warrants to search the residence, garage, and the Nissan. In the garage, officers found and seized a shovel, a loaded handgun, a holster, a box of ammunition, zip ties, and various tools. DNA analysis later revealed a mixture of two DNA profiles on the gun’s slide grip: Hannah’s and that of an unrelated male. The male DNA profile was inconclusive and could not be compared to Sisson’s. In Sisson’s Nissan (which was also seized), officers found apparent blood stains on the back seat and rear passenger-side grab handle. Analysis later confirmed those stains were from Hannah’s blood.

[13] On September 20, 2021, the State charged Sisson with seven counts:

• Count I – Kidnapping, as a Level 3 felony; 3 • Count II – Criminal Confinement, as a Level 3 felony; 4

3 Ind. Code § 35-42-3-2(a), (b)(3)(A) (2019).

4 Ind. Code § 35-42-3-3(a), (b)(3)(A) (2019).

• Count III – Kidnapping, as a Level 5 felony; 5 • Count IV – Criminal Confinement, as a Level 5 felony; 6 • Count V – Domestic Battery by Means of a Deadly Weapon, a Level 5 felony; 7

• Count VI – Intimidation, as a Level 5 felony; 8 and • Count VII – Intimidation, as a Level 5 felony. 9 Sisson was represented by counsel from the date of his initial hearing on September 27, 2021 to January 2023. At a hearing on January 26, 2023, Sisson expressed his desire to proceed pro se. The trial court permitted Sisson’s attorney to withdraw so Sisson could represent himself.

[14] A few days later, on January 31, Sisson filed a pro se “Motion to Suppress Evidence” and a memorandum of law supporting that motion. Appellant’s Appendix Vol. 2 at 220. He sought to suppress evidence obtained from Dunklin’s condo, garage, and his Nissan on the grounds that the “protective sweep” conducted by the arresting officers violated the Fourth Amendment to the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. Id. at 225. In the memorandum, he asserted the following “facts”:

5 I.C. § 35-42-3-2(a), (b)(1)(B).

6 I.C. § 35-42-3-3(a), (b)(1)(C).

7 Ind. Code § 35-42-2-1.3(a)(1), (c)(2) (2021).

8 Ind. Code § 35-45-2-1(a)(1), (b)(2)(A) (2019) (amended 2022).

9 I.C. § 35-45-2-1(a)(4), (b)(2)(A).

On September 22, 2021, [officers] arrested [Sisson], outside [Dunklin’s condo], on a body attachment/arrest warrant.

Officers then opened the screen door and exterior door of said residence, without authority, pulled a female from the residence to the outside, asked the female [if] there [was] anyone else present, then took the female and [Sisson] back into the residence, and proceeded to search the residence.

Id. at 223-24. Sisson argued that because he was not arrested inside the condo, the officers had no valid justification to conduct a “protective sweep” after taking him inside. Id. at 225. He also noted that the “arresting officers will state that the homeowner gave them permission to search the residence.” Id. at 226. However, according to Sisson, Dunklin did not voluntarily consent because she had been “yank[ed] . . . from her doorway outside, and then [was] co[]erc[ed] into giving [officers] consent to search by placing her under arrest/detainment in her own home.” Id. at 228.

[15] The court held a trifurcated hearing on the motion to suppress on February 8, March 21, and April 18, 2023. 10 On February 8, Sisson called Dunklin to testify. According to Dunklin, she became alarmed that day when she saw law enforcement standing outside her front door “in full armor . . . with their guns drawn[ and] their protective wear on.” Supplemental Tr. at 8. She opened the door because she was afraid the police were about to knock it down. Dunklin described that Sisson stood behind her as she spoke with the officers, who told

10 The State did not file a written response to the motion to suppress.

her “that they were looking for Mr. Sisson[.]” Id. She said, “[H]e’s right here[,]” and the officers “pulled” her and Sisson “out of the house.” Id. She then claimed that after asking her a few questions about Sisson, they took Sisson back inside the residence but kept speaking with her outside.

[16] Dunklin further testified that because it was raining, and since she wanted to get back to her work-from-home call center job, she asked the officers if she could go back inside. Dunklin explained what happened next as follows:

[T]hey allowed me to come back in, and one of the police officers . . . came up with me while I continued to do my job, and they had [Sisson] sit on the couch. . . . [The officers] told me that . . .

they were looking for . . . a few items. Then they read me my rights. After reading me my rights, they wanted to know . . . if they could do a search because they were just looking for a few things. At this point, unfortunately, I should know better, but I don’t know anything about the law. Never been in trouble. So I am like, okay, well, whatever you’ve got to do because at this point, I just want you out of my house. . . . I did sign a consent for [a] search[.][ 11]

Id. at 8-9. Dunklin claimed she was “under distress” when she signed the consent form because she had “never been in that type of situation before” and

11 Neither Sisson nor the State offered a copy of Dunklin’s written consent into evidence at the suppression hearing, and we do not have a copy of it in the record on appeal.

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“was also working and underneath pressure.” Id. at 9. She also said that though officers informed her of her “rights[,]” 12 she didn’t understand them. Id.

[17] After brief cross-examination by the State, the trial judge asked Dunklin if Sisson was living with her when he was arrested. Dunklin said no, and the court asked if Sisson “[h]ad . . . stayed . . . overnight at [her] residence prior to the police showing up[.]” Id. at 10. The following exchange then occurred:

[DUNKLIN]: Well, he had stayed over, you know, like he was having problems, didn’t have anywhere to stay. So I mean, he stayed over maybe like a night or two, but it was not like a consistent stay where I could say that he was in my dwelling place and – and you know, and was living there.

THE COURT: But as far as the night before leading up to this, he had stayed overnight at your location, and that is why he was there at that time, or he had simply stopped by?

[DUNKLIN]: Oh, he had simply stopped by.

THE COURT: Do you remember the last time he had stayed overnight at your residence?

[DUNKLIN]: That, I am not sure.

Id. at 10-11.

12 Neither Sisson nor the State presented evidence of what specific rights Dunklin was informed of before the officers asked for her consent.

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[18] On re-direct, Sisson asked, “[T]he night before . . . this incident happened, had I spent the night over at your house?” Id. at 11. Dunklin answered, “Yeah, I guess so.” Id. The State pressed Dunklin to clarify her testimony on re-cross. She apologized to the judge, explained that she wanted “to take back what [she] said[,]” and reiterated that Sisson “had spent the night [with her] the night before” his arrest. Id. at 12. No other witnesses or evidence was presented on February 8.

[19] On March 21, the State called two witnesses. First, Detective Weaver described that when he arrived at Dunklin’s condo on September 22, 2021, a task force had already arrived on scene to arrest Sisson inside. He saw members of that task force knock on Dunklin’s door, after which “[t]hey went inside . . . .” Tr. Vol. 2 at 8. Weaver “came in moments later, after [Sisson] was already secured, sitting on a couch in the front room.” Id. According to Weaver, the officers asked Dunklin for permission to sweep the entire property, and she consented. At some later point, Weaver passed along certain “information” to Detective Leo George, who “was running . . . the operation” but was not at Dunklin’s home. Id. at 9. George put together applications for warrants to search Dunklin’s home and Sisson’s Nissan, and the officers on the scene waited for those warrants to be issued by a judge. 13 Weaver was not

13 As noted below, initially, George only applied for a warrant to search Dunklin’s home and garage. Officers seized Sisson’s Nissan while executing that first warrant, and only then did George apply for another warrant to search the vehicle. Thus, Weaver’s testimony appears to be inaccurate insofar as he suggested that George applied for both warrants at the same time.

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 12 of 55 present when the warrants were executed. On cross-examination, Weaver reiterated that he did not see Sisson’s arrest, and he entered Dunklin’s home only after Sisson was already “inside sitting down on th[e] couch.” Id. at 11.

[20] Second, the State called Detective George. During his brief testimony, George confirmed that he applied for warrants to search Dunklin’s home and Sisson’s car based on information provided by officers who were at the scene of Sisson’s arrest. The State then offered copies of the search warrant applications into evidence, and the trial court admitted them over Sisson’s objection. Both warrant applications described what Hannah told officers about the ordeal she suffered on September 16, 2021, and noted that a warrant had been issued for Sisson’s arrest. The application for a warrant to search Dunklin’s residence and garage—which George submitted at 1:42 p.m.—described Sisson’s arrest and the subsequent “protective sweep” as follows:

On September 22, 2021, at approximately 12:00 PM, [officers]

tracked Ivy Sisson to an address located at . . . Deerwood Court, Indianapolis, Indiana where he was taken into custody for his warrant. Also at the residence was Ms. Michelle Dun[klin], who identified herself as the lease holder. As part of securing the residence for officer safety, officers asked Ms. Dun[klin]

permission to do a protective sweep of the garage area which had separate access. Ms. Dun[klin] gave them permission. While doing so, . . . officers observed . . . there to be a white, 2010 Nissan Sentra . . . located in the garage. The residence, garage[,]

and Mr. Ivy Sisson have been secured until such time a search warrant could be prepared.

Ex. Vol. 1 at 14. A judge issued a warrant to search Dunklin’s residence and garage at 1:59 p.m. Then, at 4:22 p.m., George applied for a warrant to search the Nissan, which officers had seized from Dunklin’s garage. That warrant was issued at 4:34 p.m.

[21] After the search warrant applications were entered into evidence, the court continued the rest of the suppression hearing to April 18. On that date, Sisson called Detective Michael Hewitt, who was present for Sisson’s arrest but couldn’t recall if he was “the one who put handcuffs on [Sisson] or not.” Tr. Vol. 2 at 38. He also didn’t remember whether Sisson was inside or outside Dunklin’s residence when he was arrested, though he said, “If my memory serves me correctly, . . . I believe [Sisson] stepped outside, I think, I think.” Id. When Sisson asked if it was “customary . . . if you are serving an arrest warrant, to take a defendant or arrestee back into a residence[,]” Hewitt said, “[Y]ou were staying at that residence and the lady invited us back in, if I recall that correctly.” Id. at 39. Hewitt clarified on cross-examination that Dunklin gave him permission to take Sisson back into the house because it was raining. Hewitt was not involved in conducting the protective sweep, and he provided no testimony about the search of Dunklin’s residence and garage.

[22] As his final witness, Sisson re-called Dunklin. She testified about Sisson’s arrest and the consent-search of her home consistently with the account she provided on February 8. On cross-examination, Dunklin again explained that law enforcement “read [her her] rights and asked for [her] consent to search[,]” but she claimed she felt coerced “[b]ecause [she] was in the middle of [her]

workday.” Id. at 50-51. She also said she felt the officers pressured her “because they were police and they were asking questions[.]” Id. at 52. After Dunklin’s testimony, the State and Sisson indicated they had no additional evidence on the suppression issue.

[23] From the bench, the court explained the following to Sisson:

. . . [T]estimony from Ms. Dunklin indicated that you stayed there from time to time. Her first portion of her testimony, she said that you had not spent the night there beforehand. But then on redirect she said, I guess so – saying that you had spent the night there beforehand, which could be a shaky foundation for saying that you were an overnight guest to begin with. But even granting you that, . . . if we’re moving on and saying that you do have standing to assert your challenge here, which for the sake of argument, I have granted here, I am still not seeing the misconduct by police that would warrant the suppression in this case.

. . . [T]hey asked the homeowner, Ms. Dunklin, can we search this place, and then subsequently got a search warrant signed by a judicial officer to seize certain items of evidence. That’s what I’m seeing.

Id. at 63. After the hearing, the court issued a minute order denying the motion to suppress.

[24] On November 8, 2023, the trial court released Sisson from pretrial detention and put him on a GPS monitor. On December 1, the court issued a warrant for Sisson’s arrest after he removed the monitor and fled the state. Sisson was not located and re-arrested until April 5, 2025. Because Sisson absconded and due to several continuances throughout the pendency of the case, Sisson’s two-day jury trial did not commence until October 28, 2025. A few months before trial, Sisson changed his mind about proceeding pro se, and a public defender was appointed to represent him.

[25] At trial, numerous witnesses testified to the facts of Sisson’s crimes described above, including Hannah, her supervisor at the health lab, a coworker, the security guard, the physician’s assistant who treated Hannah, Detective Weaver, and other law enforcement representatives who participated in the investigation. Among other exhibits, the State offered photographs taken during the search of Dunklin’s home and garage; the firearm, magazine, holster, and shovel found in the garage; photographs of the interior and exterior of the Nissan; and DNA swabs and other samples from the car that were submitted to the crime lab for testing. Sisson asserted a continuing objection to all this evidence based on his “pretrial arguments on [the] issue of the search” which he “maintain[ed] was not constitutional.” Tr. Vol. 3 at 87. The court admitted the evidence over Sisson’s objections. 14

[26] Ultimately, the jury found Sisson guilty as charged. With the verdict forms, the jury sent the court a handwritten note informing it of the following:

The jury has come to a conclusion that charges 6 and 7 are very similar. We feel as though [b]oth charges should have been

14 We outline other relevant evidence presented at trial in our discussion.

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 16 of 55 rolled into one charge. We the jury ask to keep this in mind during sentencing.

Appellant’s App. Vol. 5 at 72. When the jury was released, the trial judge showed that note to the attorneys and said that Counts VI and VII (the intimidation charges) were “[p]robably going to merge anyway, so it’s moot.” Tr. Vol. 3 at 213.

[27] At the sentencing hearing, the State asked the court to impose an aggregate sentence of twenty-two years, made up of: (1) a fourteen-year sentence on the Level 3 felony kidnapping charge; (2) a consecutive four-year sentence on the Level 5 felony domestic battery charge; (3) a consecutive four-year sentence on one of the Level 5 intimidation charges; and (4) concurrent sentences on each of the remaining counts. The State argued the sentences for the Level 3 felony kidnapping, the Level 5 felony domestic battery, and one of the Level 5 felony intimidation charges should be consecutive because “those are the crimes that are easily separated from each other.” Id. at 226. However, according to the State, the remaining counts were “a bit more intertwined[.]” Id. Sisson’s counsel “ask[ed] the [c]ourt to run all of the[] charges together concurrently” and argued,

I see this as one prolonged act that begins with the attack and kidnapping, the drive, which is the confinement, with the domestic battery as part of that kidnapping, the intimidation as part of that kidnapping, in an effort to make her . . . comply with what he wanted to do. I believe that all of these actions are part of one picture, and that these charges should all run together.

Id. at 226-27.

[28] After considering the parties’ arguments, the trial court entered judgments of conviction on all seven counts and imposed an aggregate sentence of thirty-one years in the Department of Correction as follows:

Count Offense Sentence I Level 3 felony kidnapping 15 years

II Level 3 felony criminal confinement 10 years – consecutive to Count I

III Level 5 felony kidnapping 6 years – concurrent with Count II

IV Level 5 felony criminal confinement 6 years – concurrent with Count II

V Level 5 felony domestic battery 6 years – consecutive to Count II

VI Level 5 felony intimidation 6 years – concurrent with Count V

VII Level 5 felony intimidation 6 years – concurrent with Count V

[29] Sisson now appeals.

Discussion and Decision

1. Admission of Evidence [30] Sisson first argues that “[t]he trial court erroneously admitted evidence

unlawfully recovered from Dunklin’s home.” Appellant’s Brief at 14. We Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 18 of 55 review a trial court’s decision to admit evidence at trial following the denial of a pre-trial motion to suppress for an abuse of discretion and will “reverse only if a ruling is ‘clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)). When “the evidence is conflicting,” we “consider only that evidence which tends to support the trial court’s ruling” and will “uphold the trial court if the ruling is supported by substantial evidence of probative value.” Peterson v. State, 674 N.E.2d 528, 535 (Ind. 1996), reh’g denied, cert. denied. However, “the ultimate ‘ruling on the constitutionality of a search’ is a legal conclusion that we review de novo[.]” McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014) (quoting Garcia-Torres v. State, 949 N.E.2d 1229, 1232 (Ind. 2011)).

[31] According to Sisson, the “protective sweep” of Dunklin’s home was unlawful under both the federal and state constitutions, and thus any evidence seized “pursuant to the subsequent search warrants was inadmissible fruit of the poisonous tree.” Appellant’s Br. at 22. Under the Fourth Amendment to the U.S. Constitution (which Article 1, Section 11 of the Indiana Constitution mirrors), “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend IV; see also Ind. Const. art. 1, § 11. Both provisions “protect citizens from unreasonable searches and seizures.” Ramos-Osario v. State, 280 N.E.3d 784, 789 (Ind. 2026).

[32] The privacy rights protected by Article 1, Section 11 and the Fourth Amendment are personal, and a defendant cannot vicariously challenge the constitutionality of a search under either. Peterson, 674 N.E.2d at 532, 534. To challenge a search under the Fourth Amendment, the defendant has the burden to show he had “a legitimate expectation of privacy in that which [was] searched.” Barker v. State, 96 N.E.3d 638, 647 (Ind. Ct. App. 2018) (quoting Peterson, 674 N.E.2d at 532), trans. denied. Similarly, “Indiana law has . . . imposed a requirement of standing to challenge a search or seizure” under the state constitution. Peterson, 674 N.E.2d at 534. Put simply, “a defendant cannot successfully object to a search of the premises of another if such search does not unlawfully invade his own privacy.” 15 Id.

[33] Here, the trial court observed that Sisson’s claim to have a legitimate privacy interest in Dunklin’s condo lies on “a shaky foundation . . . .” Tr. Vol. 2 at 63. But because the State does not contest Sisson’s standing, we assume without deciding that he had a legitimate expectation of privacy in the premises

15 Though a defendant must have had a reasonable expectation of privacy to challenge a search under both the state and federal constitutions, “the U.S. Supreme Court has abandoned the concept of ‘standing.’” Allen v. State, 893 N.E.2d 1092, 1096 (Ind. Ct. App. 2008), reh’g denied, trans. denied. As previously explained by this Court, In Rakas, the United States Supreme Court determined that the “definition of those [personal]

rights [that is, whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties] is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.”

Id. (quoting Rakas v. Illinois, 439 U.S. 128, 140 (1978), reh’g denied) (alterations in original). However, “Indiana courts have continued to use the ‘standing’ terminology when discussing Fourth Amendment claims.” Barker, 96 N.E.3d at 648 n.3 (quoting Allen, 893 N.E.2d at 1097 n.4).

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 20 of 55 searched. 16 However, as we explain below, even with that assumption, we find no error in the trial court’s determination that Dunklin gave the officers voluntary consent to conduct a “preliminary search” of her residence and garage before applying for a search warrant. Id. at 62. Moreover, even if the trial court did err, that error did not affect Sisson’s substantial rights.

Voluntariness of Dunklin’s Consent [34] To be lawful under the state and federal constitutions, “it is axiomatic that a search requires a warrant unless certain narrow exceptions apply[.]” State v. Cunningham, 26 N.E.3d 21, 25 (Ind. 2015). One such exception is where the officers had consent to search, as “a ‘search based on lawful consent is consistent with both the Indiana and Federal Constitutions.’” Id. (quoting Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008)). As summarized by our Supreme Court,

Under both the Fourth Amendment and the Indiana Constitution, the State carries “the burden of proving ‘that the consent was in fact voluntarily given, and not the result of duress

16 Sisson did not live with Dunklin, but he may have had a legitimate privacy interest in the premises if he stayed there the night before his arrest as an overnight guest. See Best v. State, 821 N.E.2d 419, 424 (Ind. Ct. App. 2005) (“[A]n overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.” (quoting Minnesota v. Carter, 525 U.S. 83, 90 (1998))) (alteration in original), reh’g denied, trans. denied. Dunklin gave equivocating testimony at the suppression hearing about whether Sisson stayed with her the night before his arrest. She first testified in response to a question from the court that Sission had not stayed the night before but had “simply stopped by” on the day of his arrest. Supp. Tr. at 11. She then recanted that testimony on re-direct, answering, “Yeah, I guess so[,]” when Sisson asked if he “had . . . spent the night over at [her] house[.]” Id. Though there was an argument to be made that Sisson lacked standing, in its brief the State indicated it would not challenge Sisson’s claimed privacy interest and would instead “assume arguendo that he had standing to contest the search of Dunkin’s residence and garage.” Appellee’s Br. at 20 n.6.

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 21 of 55 or coercion, express or implied.’” Campos, 885 N.E.2d at 600 (quoting [Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)], and citing Kubsch v. State, 784 N.E.2d 905, 917-18 (Ind.2003)).

“‘Voluntariness is a question of fact to be determined from all the circumstances.’” Campos, 885 N.E.2d at 600 (quoting Bustamonte, 412 U.S. at 248-49 . . . ). And “a consent to search is valid except where procured by fraud, duress, fear, or intimidation or where it is merely a submission to the supremacy of the law.” Joyner v. State, 736 N.E.2d 232, 242 (Ind.2000).

McIlquham, 10 N.E.3d at 511. 17

[35] The circumstances that must be considered when determining whether consent was voluntarily given include the following non-exhaustive factors:

(1) whether the [person giving consent] was advised of [her]

Miranda rights prior to the request to search; (2) the [consenter’s]

degree of education and intelligence; (3) whether the [consenter]

was advised of [her] right not to consent; (4) whether the [consenter] has previous encounters with law enforcement; (5)

17 Though their language is nearly identical, we generally “interpret Article 1, Section 11 . . . separately and independently” from the Fourth Amendment. Barker, 96 N.E.3d at 653. But we need not separately analyze the state and federal constitutions here. Indeed, “[m]any search and seizure issues are resolved in the same manner under both the Indiana and Federal Constitutions.” Allen, 893 N.E.2d at 1098 (quoting Campos, 885 N.E.2d at 596). And where, as here, the defendant argues the State violated his privacy interest in the premises searched (rather than the items seized), federal precedent addressing the Fourth Amendment “is equally applicable under the Indiana Constitution.” Id. (quoting Campos, 885 N.E.2d at 598). We recognize that one panel of this Court opted not to apply federal precedent to a defendant’s claim that her consent to a blood draw was not voluntary under Article 1, Section 11. Isley v. State, 202 N.E.3d 1124, 1130- 31 (Ind. Ct. App. 2023), trans. denied. Instead, the Isley majority applied the factors articulated by our Supreme Court in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005) to determine whether the warrantless blood draw was reasonable. Isley, 202 N.E.3d at 1130-32. But we are persuaded by the Isley concurrence, which relied on McIlquham to conclude that when, as here, a defendant challenges the voluntariness of consent but not the reasonableness of the officers’ behavior in executing the search, we need not separately analyze Article 1, Section 11 and the Fourth Amendment. See id. at 1134-35 (May, J., concurring) (“To hold otherwise would put police officers in the untenable position of needing to consider whether a search might be upheld by a court applying the Litchfield factors even after a citizen has consented to a search.”).

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 22 of 55 whether the officer made any express or implied claims of authority to search without consent; (6) whether the officer was engaged in any illegal action prior to the request; (7) whether the [consenter] was cooperative previously; and (8) whether the officer was deceptive as to his true identity or the purpose of the search.

Crocker v. State, 989 N.E.2d 812, 821 (Ind. Ct. App. 2013) (quoting Callahan v. State, 719 N.E.2d 430, 435 (Ind. Ct. App. 1999)), trans. denied. 18 We find factors (1), (3), (5), (6), and (8) particularly relevant here.

[36] Starting with factor (6), Sisson’s arresting officers did nothing untoward before asking for Dunklin’s consent to search. The evidence most favorable to the trial court’s ruling shows that the officers lawfully arrested Sisson in the doorway of Dunklin’s condo and secured him and Dunklin outside the residence with the intention of applying for a search warrant. See Sugg v. State, 991 N.E.2d 601, 608 (Ind. Ct. App. 2013) (under certain circumstances, officers may “refus[e] to allow a [person] to enter his or her residence . . . until a search warrant has been obtained . . . .”), trans. denied. Because it was raining and since Dunklin wanted to get back to her work-from-home call center job, she invited the officers to accompany her inside. The officers then allowed her to continue working and communicated with her only “between [her] phone calls[.]” Tr. Vol. 2 at 47.

18 In third-party consent cases like Sisson’s, we also typically examine whether the consenting party had authority to consent to a search of property in which the non-consenting party had a legitimate privacy interest. Krise v. State, 746 N.E.2d 957, 965 (Ind. 2001). Here, however, there is no dispute that Dunklin had actual authority to consent to the search of her condo and garage, so we do not analyze that requirement.

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While we can certainly understand why Sisson’s arrest was stressful for Dunklin, the officers were well within their rights to arrest Sisson—a violent fugitive—with a show of force.

[37] Turning to factor (5), after entering Dunklin’s home, the officers did not immediately start searching and didn’t claim authority to do so. Instead, they asked Dunklin for permission to look around the premises, read her certain “rights,” and had her sign a consent to search. Supp. Tr. at 8. While Sisson did not make a clear record of what specific rights Dunklin was informed of, it’s reasonable to infer that she was advised, at minimum, of her Miranda rights (factor (1)) and her right to not consent to a search (factor (3)). 19 While Dunklin testified that she did not understand her rights and felt pressured to provide consent, “her contentions do not outweigh the substantial evidence of voluntariness presented.” Melton v. State, 705 N.E.2d 564, 567 (Ind. Ct. App. 1999) (affirming lawfulness of a warrantless search when a homeowner allowed police to enter her home, was not placed under arrest, permitted the officers to search, didn’t ask them to stop searching, and assisted in the search).

19 Sisson contends Dunklin “was not advised of her right to decline the search.” Appellant’s Br. at 18. As an initial matter, that assertion is not supported by the record, as Dunklin did not testify about what specific rights the officers did or did not explain to her. As such, Sisson’s claim that Dunklin was not informed of her right to refuse consent is mere conjecture. Additionally, Indiana’s appellate courts have upheld consent searches where officers did not advise the consenter of the right to refuse consent, but the totality of the circumstances otherwise indicated the consent was voluntarily. See Cox v. State, 160 N.E.3d 557, 562 (Ind. Ct. App. 2020) (citing examples).

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[38] Under factor (8), the evidence most favorable to the ruling belies Sisson’s claim that the officers “conceal[ed] their true purpose” by telling Dunklin “they wanted to do a ‘protective sweep[.]’” Appellant’s Br. at 24. Sisson is right that “a consent search is reasonable only if it is kept within the boundaries of the consent.” Melton, 705 N.E.2d at 567. But although George—who was not at the scene of Sisson’s arrest—used the phrase “protective sweep” in the search warrant applications, Dunklin’s testimony supports the trial court’s determination that she gave the officers permission to do more than a mere protective sweep. In Dunklin’s own words, the officers “told [her] . . . they were looking for . . . a few items[,]” and she told them to do “whatever you’ve got to do . . . .” Supp. Tr. at 8-9. What Dunklin described was not a protective sweep but was—as the trial court reasoned—a “preliminary search” that allowed officers to look around for potential evidence before “ask[ing] for a . . . warrant to seize and obtain items[.]” Tr. Vol. 2 at 62.

[39] For these reasons we find substantial evidence of probative value supporting the trial court’s conclusion that Dunklin gave voluntary consent for officers to search her residence and garage. Thus, the court did not abuse its discretion by admitting evidence seized from Dunklin’s condo at Sisson’s trial.

Harmless Error

[40] Even if the challenged evidence was erroneously admitted, “[e]rrors in the admission of evidence are ordinarily disregarded as harmless error unless they affect the substantial rights of a party.” Remy v. State, 17 N.E.3d 396, 401 (Ind. Ct. App. 2014), trans. denied. Whether a party’s substantial rights have been affected turns on the probable impact the erroneously admitted evidence had on the jury. Id. We will find the erroneous admission of evidence harmless “if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction.” Id. (quoting Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012), reh’g denied).

[41] Aside from the items seized from Dunklin’s condo, there was substantial independent evidence proving Sisson abducted Hannah on September 16, 2021. In fact, ignoring the evidence obtained from Dunklin’s residence and garage, the evidence presented to the jury in this case was overwhelming. See Ben- Yisrayl v. State, 690 N.E.2d 1141, 1148 (Ind. 1997) (finding challenged evidence did not affect the jury’s verdict in light of overwhelming independent evidence of the defendant’s guilt), reh’g denied, cert. denied. Hannah provided a detailed account of what happened to her that was thoroughly corroborated. Her account of the initial struggle she had with Sisson was consistent with testimony provided by Hannah’s coworkers, her supervisor, and an officer who responded to the health plaza when Hannah was reported missing. Their testimonies established that Hannah’s SUV was parked in its usual spot even though she did not show up for work that morning. Moreover, there was trampled grass and a light post that had been knocked over in the same area where Hannah reported having a physical altercation with Sisson, and Hannah’s keys were found near where she and Sisson had struggled for them.

[42] Hanna’s testimony about the route Sisson took that morning matched cell site location data associated with Hannah’s and Sisson’s cell phones. And at the same time Hannah’s phone connected to a tower near IU Health West Hospital, the hospital’s security cameras captured video of Sisson’s white Nissan dropping Hannah off. Hannah received treatment at the hospital for injuries consistent with the beatings Sisson allegedly inflicted on her, and the mud on her pants aligned with her claim that Sisson had made her kneel in a ditch. Three days after the incident, Sisson was seen on Hannah’s home security footage driving the Nissan, further proving that Sisson had the vehicle in his possession. The State is right that “[g]iven this mountain of evidence, it is clear that [Sisson] would have been convicted without regard to the evidence located in Dunk[l]in’s garage and in [Sisson’s] car.” Appellee’s Br. at 33.

* * * *

[43] In short, the trial court did not err in admitting evidence obtained from Dunklin’s home and garage at trial, and even if it did err, that error was harmless.

2. Substantive Double Jeopardy [44] Sisson next argues that his convictions for Level 3 felony criminal confinement

(Count II), Level 5 felony kidnapping (Count III), Level 5 felony criminal confinement (Count IV), and both counts of Level 5 intimidation (Counts VI and VII) violate the prohibition against substantive double jeopardy and must be vacated. 20 Substantive double jeopardy bars the State from subjecting a defendant “to multiple convictions or punishments for the ‘same offense’ in a single trial.” Moyers v. State, 277 N.E.3d 33, 38 (Ind. 2026) (quoting Wadle v. State, 151 N.E.3d 227, 238-39 (Ind. 2020)). Whether convictions put the defendant in substantive double jeopardy is a question of law that we review de novo. Wadle, 151 N.E.3d at 237.

[45] For its part, the State concedes that Sisson’s convictions on Counts II, III, IV, and VI violate substantive double jeopardy, but it contends that Count VII does not. The State’s concessions are well-taken; however, “[w]hile we sometimes accept concessions from the State regarding factual matters, ‘a question of law . . . is a matter for the courts, not the State, to decide.’” In re K.W., 247 N.E.3d 1250, 1261 (Ind. Ct. App. 2024) (quoting Hochstetler v. State, 215 N.E.3d 365, 371 (Ind. Ct. App. 2023), reh’g denied). We review a “conceded issue for prima facie error.” Id.; see Covington v. State, No. 25A-CR-335, 2025 WL 2414572, at *1-3 (Ind. Ct. App. Aug. 21, 2025) (mem.) (reviewing a conceded substantive double jeopardy claim for prima facie error). “Prima facie error in this context means ‘at first sight, on first appearance, or on the face of it.’” K.W., 247 N.E.3d at 1261 (quoting Salyer v. Wash. Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020)).

20 Sisson does not challenge his conviction for domestic battery (Count V), so we do not factor that conviction into our substantive double jeopardy analysis.

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 28 of 55

[46] Our Supreme Court has fashioned two separate substantive double jeopardy frameworks. The first, articulated in Wadle and refined by A.W. v. State, 229 N.E.3d 1060 (Ind. 2024), “addresse[s] scenarios when ‘a single criminal act or transaction violates multiple statutes with common elements.’” Moyers, 277 N.E.3d at 38 (quoting Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020)). The second, expressed in Powell, “addresse[s] ‘multiplicity,’ which occurs ‘when a single criminal act or transaction violates a single statute and results in multiple injuries.’” Id. (quoting Powell, 151 N.E.3d at 263).

[47] In complex, multi-count cases like Sisson’s, the Wadle-Powell dichotomy requires us to apply either Wadle or Powell to different convictions within the same appeal. Here, Sisson ultimately concludes that only Count I (Level 3 felony kidnapping) can stand, as Counts II, III, IV, VI, and VII each violate substantive double jeopardy in relation to Count I. We thus proceed by analyzing each of the challenged convictions against Count I. 21

21 Though we ultimately reach the same conclusion as Sisson, we take a different route than he proposes to get there. Sisson first applies the Powell multiplicity framework to his dual kidnapping convictions under Counts I and III and to his twin criminal confinement convictions under Counts II and IV, concluding that only Counts I and II can stand under Powell. Then, he uses Wadle to analyze his Level 3 kidnapping conviction (Count I) against his Level 3 felony criminal confinement conviction (Count II), and he concludes that only the kidnapping conviction survives. Finally, he applies Wadle to Count I and his intimidation convictions (Counts VI and VII), ultimately concluding that only Count I can be affirmed without violating substantive double jeopardy.

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Counts II and IV– Criminal Confinement [48] We first address whether Sisson’s convictions for Level 3 felony criminal confinement (Count II) and Level 5 felony criminal confinement (Count IV) each subject him to substantive double jeopardy based on his conviction for Level 3 felony kidnapping (Count I). Wadle applies here, “as the statutes under which the counts were charged clearly define two distinct base offenses.” Easter v. State, 281 N.E.3d 896, 904 (Ind. Ct. App. 2026); see Ind. Code §§ 35-42-3-2(a) (2019) (kidnapping), 35-42-3-3(a) (2019) (criminal confinement).

[49] Wadle and A.W. created and refined a three-part test which “generally require[s] 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.” Easter, 281 N.E.3d at 908 (citing Wadle, 151 N.E.3d at 253). At step one, we examine the statutory language to determine whether “either statute clearly permits multiple punishment, either expressly or by unmistakable implication[.]” A.W., 229 N.E.3d at 1066 (quoting Wadle, 151 N.E.3d at 248). If so, “the court’s inquiry comes to an end and there is no violation of substantive double jeopardy.” Id. (quoting Wadle,

We find that Sisson’s approach is inefficient and belies the true nature of his substantive double jeopardy claim. If, for example, we can first determine that Counts II and IV violate substantive double jeopardy in relation to Count I, there would be no need address whether Count IV can stand in relation to Count II. In contrast, if—and only if—we determine that Counts II and IV do not violate substantive double jeopardy in relation to Count I, it would make sense at that point to address Sisson’s alternative argument that Count IV cannot stand in relation to Count II. But the upshot of Sisson’s claim is that Counts II, III, IV, VI, and VII violate substantive double jeopardy in relation to Count I—so the most logical track is to begin by analyzing each of the challenged convictions against Count I.

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 30 of 55 151 N.E.3d at 248). Here, both parties agree that neither the kidnapping statute nor the criminal confinement statute permits multiple punishments, so we proceed to step two.

[50] Step two calls for application of the “included-offense statutes to determine statutory intent.” Id. (quoting Wadle, 151 N.E.3d at 248). Our legislature has defined 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 (2012).

[51] Under Wadle, an offense can be included in another “either inherently or as charged[.]” 151 N.E.3d at 248. An offense is inherently included if it “fit[s] within one of” section 35-31.5-2-168’s “enumerated subsections.” A.W., 229 N.E.3d at 1067. An offense is factually included (i.e., included as charged) if “the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense.” Id. (quoting Wadle, 151 N.E.3d at 251 n.30). As summarized by Easter,

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).

281 N.E.3d at 909.

[52] Here, both of Sisson’s criminal confinement convictions are lesser-included offenses of kidnapping, inherently and as charged. Criminal confinement is inherently included in kidnapping because it “requires proof of the same but fewer criminal elements as kidnapping.” Madden v. State, 162 N.E.3d 549, 562 (Ind. Ct. App. 2021) (quoting Jones v. State, 159 N.E.3d 55, 66 (Ind. Ct. App. 2020), trans. denied). As explained by Jones,

A kidnapper must act “by fraud, enticement, force, or threat of force,”[ 22] whereas criminal confinement must be done without consent.[ 23] Consent is a “voluntary yielding to what another proposes or desires.” Consent, Black’s Law Dictionary (11th ed.

2019). Non-consent is established by the methods noted in the statute of “fraud, enticement, force, or threat of force.”

Kidnapping requires removal from one place to another, while criminal confinement requires an act of confinement. In removing someone from one place to another, a kidnapper has

22 A person commits kidnapping when they “knowingly or intentionally remove[] another person, by fraud, enticement, force, or threat of force, from one place to another . . . .” I.C. § 35-42-3-2(a). 23 A person commits criminal confinement when they “knowingly or intentionally confine[] another person without the other person’s consent . . . .” I.C. § 35-42-3-3(a).

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 32 of 55 confined that person to those places. The element of confinement is a necessary part of forced removal.

159 N.E.3d at 66.

[53] Turning to factual inclusion, the charging information for Counts I, II, and IV alleged as follows:

COUNT I

On or about September 16, 2021, Ivy Sisson, while armed with a deadly weapon, to-wit: a gun, did knowingly remove Kristina [Hannah], by force or threat of force from one place, to-wit: the parking lot of IU Health Methodist Medical Plaza, to another place, to-wit: into a vehicle and to a location in the vicinity of Fair Oaks Farms[.]

COUNT II

On or about September 16, 2021, Ivy Sisson did knowingly confine Kristina [Hannah] without the consent of Kristina [Hannah], said Ivy Sisson being armed with a deadly weapon, to wit: a gun[.]

....

COUNT IV

On or about September 16, 2021, Ivy Sisson did knowingly confine Kristina [Hannah] without the consent of Kristina [Hannah], said act resulting in bodily injury to Kristina [Hannah], to-wit: lacerations and/or bruising and/or pain[.]

Appellant’s App. Vol. 2 at 58-59. On the face of the charging instrument, the State did not distinguish the kidnapping described in Count I from the acts of confinement alleged in Counts II and IV. Under A.W., the resulting ambiguity “create[s] a presumptive double jeopardy violation that [must be] rebutted by the State using actual evidence at Step 3.” 229 N.E.3d at 1070.

[54] At step three, we conduct a “cabined version of Richardson’s actual evidence test,” 24 under which we “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.’” A.W., 229 N.E.3d at 1071 (quoting Wadle, 151 N.E.3d at 249). If the evidence presented at trial reveals the offenses were “indeed ‘separate,’ there is no Wadle violation, ‘even if one offense is, by definition, “included” in the other.’” Id. (quoting Wadle, 151 N.E.3d at 249). However, “if the ‘facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than cumulative) sanctions.’” Id. (quoting Wadle, 151 N.E.3d at 249).

24 Under the actual evidence test, as articulated by the Court in Richardson v. State,

the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.

717 N.E.2d 32, 53 (Ind. 1999).

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[55] As recently explained by this Court, “[t]o accomplish Step 3, . . . we must first identify which of the defendant’s actions to analyze.” Afolabi v. State, 279 N.E.3d 939, 955 (Ind. Ct. App. 2026), trans. denied. “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.” Easter, 281 N.E.3d at 910 (quoting Afolabi, 279 N.E.3d at 955). Instead, “the 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.

[56] Here, the State did not meet its burden to show that the kidnapping and criminal confinement convictions were supported by independent evidence at trial. As the State concedes, those convictions “were based on the same act of forcing [Hannah] into the car at gunpoint, keeping her in the car by force against her will as [Sisson] drove north, and then forcing [Hannah] out of the car and into a ditch in a cornfield . . . .” Appellee’s Br. at 39. Indeed, nothing in the evidence presented at trial or in the deputy prosecutor’s closing argument indicated to the jury that Counts I, II, and IV were factually distinct.

[57] Since the State did not meet its burden to rebut the presumption of double jeopardy as to Counts I (Level 3 felony kidnapping), II (Level 3 felony criminal confinement), and IV (Level 5 felony criminal confinement), Sisson’s convictions on Count II and IV are contrary to law. We remand for the trial court to vacate Count II and its corresponding ten-year consecutive sentence, as well as Count IV and its six-year concurrent sentence. See Eversole v. State, 251 N.E.3d 604, 609 (Ind. Ct. App. 2025) (holding “that the proper remedy” when a Wadle violation is found “is to vacate the conviction with the lesser penalty”), trans. denied.

Count III – Level 5 Felony Kidnapping [58] Next, we address whether Sisson’s conviction for Level 5 felony kidnapping (Count III) subjects him to substantive double jeopardy in relation to his conviction for Level 3 felony kidnapping (Count I). Because Sisson’s kidnapping convictions were based on different subsections of Indiana Code section 35-42-3-2, we look to Moyers to determine whether Wadle or Powell applies here.

[59] Moyers tells us which framework to apply “when a defendant’s convictions stem from multiple violations of the same statute with differing enhancing circumstances or penalty levels.” 277 N.E.3d at 36. According to Moyers, “the applicability of Wadle or Powell . . . depends on whether the convictions are for offenses stemming from one base offense or two.” Id. at 42. And “[t]o illustrate the different ways our Legislature has defined offenses,” Moyers “highlight[ed] three categories of criminal statutes.” Id. at 40.

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. (emphasis added).

[60] The kidnapping statute provides, in relevant part, as follows:

(a) A person who knowingly or intentionally removes another person, by fraud, enticement, force, or threat of force, from one place to another commits kidnapping. Except as provided in subsection (b), the offense of kidnapping is a Level 6 felony.

(b) The offense described in subsection (a) is:

(1) a Level 5 felony if:

....

(B) it is committed by using a vehicle; or

....

(3) a Level 3 felony if it:

(A) is committed while armed with a deadly weapon[.]

I.C. § 35-42-3-2(a), (b)(1)(B), (b)(3)(A). This is a Category One statute, as subsection (a) defines the base offense of kidnapping and sets its lowest penalty level at a Level 6 felony. Subsection (b) then elevates “[t]he offense described in subsection (a)” to various higher-level felonies. I.C. § 35-42-3-2(b); see Moyers, 277 N.E.3d at 40-41 (holding that the similarly structured criminal confinement statute, Indiana Code section 35-42-3-3, is a Category One statute). Thus, we apply Powell to determine whether Sisson’s twin kidnapping convictions violate substantive double jeopardy.

[61] Powell articulated a two-step test to determine whether a statute “permits the ‘fragmentation’ of a course of criminal conduct into two or more punishable offenses.” Moyers, 277 N.E.3d at 43 (quoting Powell, 151 N.E.3d at 264). “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.” Easter, 281 N.E.3d at 907.

[62] At step one, we “determine the ‘unit of prosecution’ for the statutory offense at issue.” White v. State, 264 N.E.3d 99, 105 (Ind. Ct. App. 2025) (quoting Powell, 151 N.E.3d at 264). A unit of prosecution “is the specific act or conduct our Legislature intended to treat as one punishable offense under a criminal statute.” Moyers, 277 N.E.3d at 43. If the statute does not explicitly define the unit of prosecution, “we identify [it] by determining whether the statute is ‘conduct-based’ or ‘result-based.’” Id. (quoting Powell, 151 N.E.3d at 265). As summarized by Moyers,

A conduct-based statute defines an offense by certain actions or behavior, and the crime is complete once the offender engages in the prohibited conduct, regardless of whether that conduct produces a specific result. Under such statutes, a single discrete incident can be the basis for only one conviction. By contrast, a result-based statute defines an offense by the defendant’s actions and the results or consequences of those actions, thus permitting multiple convictions when multiple consequences flow from a single criminal act.

Id. (internal quotation marks and citations omitted). If we can identify the unit of prosecution, “we turn to the facts to determine how many discrete offenses the evidence supports.” Id. But if the unit of prosecution is ambiguous, we proceed to Powell’s second step. 151 N.E.3d at 264.

[63] It is well-settled that the kidnapping statute is conduct-based, so the unit of prosecution is unambiguous. Jones, 159 N.E.3d at 64 (“[K]idnapping is a conduct-based crime defined by the defendant’s actions[.]”); Madden, 162 N.E.3d at 560 (kidnapping “is a conduct-based statute because the gravamen of the offense is the action of removing the victim”). Because the unit of prosecution is unambiguous, we need not turn to Powell’s second step; instead, we will examine the facts at step one “to determine how many discrete acts of” kidnapping Sisson committed. 25 Moyers, 277 N.E.3d at 39.

25 Recent panels of this Court have expressed uncertainty about how to conduct the Powell analysis when the unit of prosecution is unambiguous. For example, in Ryan v. State, the panel noted:

[O]ur Supreme Court has twice instructed us to turn to step two only if we find that the statute's unit of prosecution is “ambiguous.” See Powell, 151 N.E.3d at 264; Moyers, 277 N.E.3d at 43.

Most recently, in Moyers, the Court made clear that when, as here, the unit of prosecution is unambiguous, the reviewing court “need[s] just Powell’s first step . . . .” 277 N.E.3d at 44.

And—purportedly at that first step—we can examine the evidence “to determine how many discrete offenses the evidence supports.” Id. at 43.

We are not sure how examining the facts at step one differs in any material respect from the continuous crime analysis at step two.

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[64] When examining the facts under Powell, we apply the continuous crime doctrine to examine “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. We do so by asking “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.’” Id. (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010), reh’g denied). “If the defendant’s criminal acts are sufficiently distinct, then multiple convictions may stand; but if those acts are continuous and indistinguishable, a court may impose only a single conviction.” Id. at 264-65.

[65] Here, the evidence presented at trial established a single act of kidnapping. As the State concedes, “the facts show only one continuous act of forcible removal.” Appellee’s Br. at 37. That is, “[b]oth charges were predicated on removing [Hannah] by force or threat of force,” and “[t]he evidence showed that there was no break in the continuity of action from the time [Sisson] first began removing [Hannah] at gunpoint from the parking lot until the time that he forced her out of the car at gunpoint into the ditch in the cornfields . . . .” Id.

282 N.E.3d 1035, 1043-44 (Ind. Ct. App. 2026), trans. denied. Indeed, cases applying Powell have been inconsistent about whether an unambiguous unit of prosecution calls for factual analysis under step one, step two, or something in between. See White, 264 N.E.3d at 106 (applying step two despite holding that the child molesting statute “is a conduct-based statute”); Easter, 821 N.E.3d at 907 n.3 (“[I]t 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”); but see Moyers, 277 N.E.3d at 44 (“[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.”).

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As such, Sisson’s dual kidnapping convictions put him in substantive double jeopardy, and his conviction on Count III is contrary to law. We remand for the trial court to vacate Sisson’s conviction on Count III and its corresponding six-year concurrent sentence. See Moyers, 277 N.E.3d at 45 (applying the Eversole remedy to a Powell violation).

Counts VI and VII – Level 5 Felony Intimidation [66] Finally, we determine whether Sisson’s convictions for Level 5 felony intimidation (Counts VI and VII) each put him in substantive double jeopardy based on his conviction for Level 3 felony kidnapping (Count I). Wadle controls that analysis, as the kidnapping and intimidation statutes clearly define separate base offenses. See I.C. §§ 35-42-3-2(a) (kidnapping), 35-45-2-1(a) (intimidation).

[67] Here, Sisson and the State agree at step one that neither the kidnapping statute nor the intimidation statute permits multiple punishments. They also agree at step two that while intimidation is not inherently included in kidnapping, Counts VI and VII are factually included in Count I. The charging information for Counts VI and VII alleged the following: 26

COUNT VI

On or about September 16, 2021, Ivy Sisson did communicate a threat to Kristina [Hannah], another person, while drawing or using a deadly weapon, with the intent that Kristina [Hannah]

26 Since we recited the charging information for Count I above, we have not repeated it here.

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 41 of 55 engage in conduct against her will by getting in a vehicle with him and/or staying in the vehicle[.]

COUNT VII

On or about September 16, 2021, Ivy Sisson did communicate a threat to Kristina [Hannah], another person, by drawing or using a deadly weapon, with the intent that Kristina [Hannah] be placed in fear that the threat will be carried out[.]

Appellant’s App. Vol. 2 at 59.

[68] The State correctly notes that Counts I and VI “were predicated on the same conduct; the evidence that [Sisson] forced [Hannah] at gunpoint to walk across the parking lot and enter his car . . . .” Appellee’s Br. at 42. Thus, Count VI puts Sisson in substantive double jeopardy in relation to Count I. However, the State argues Count VII does not similarly violate substantive double jeopardy because Sisson “communicated additional threats involving the use of his gun, beyond the threat of force used to effectuate the kidnapping, that support this intimidation charge.” Id. at 43. While we agree the evidence at trial could have supported a finding that Sisson threatened Hannah with the gun numerous times, the relevant inquiry at step three of Wadle is not how the jury could have understood the evidence, but how it did so given the way the State presented its case. Easter, 821 N.E.3d at 911.

[69] Here, we have uncommon insight into the jury’s thinking because it sent a note to the trial judge stating that in the jurors’ minds, “charges 6 and 7 [were] very similar” and “should have been rolled into one charge.” Appellant’s App. Vol.

5 at 72. Based on that note, we can confidently say the State did not make clear to the jury that Counts VI and VII were supported by distinct facts. And since it is undisputed that the State did not distinguish Counts I and VI, logic dictates that the State did not distinguish Counts I and VII, either. The State has therefore failed to meet its burden to rebut the presumption of substantive double jeopardy as to Counts I, VI, and VII, and Sisson’s convictions and sentences on Counts VI and VII must be vacated.

* * * *

[70] In closing, we briefly address the effect our decision will have on Sisson’s aggregate sentence. Though vacating the concurrent sentences on Counts III, IV, VI, and VII will not impact Sisson’s overall sentence, vacating his ten-year consecutive sentence on Count II will. This contrasts with Wadle, where the defendant received an aggregate sixteen-year sentence after being convicted of one Level 3 felony and three lower-level felony offenses. 151 N.E.3d at 236. After vacating the three lower-level felonies, the Court reasoned it did not have to remand for resentencing because the Level 3 felony “conviction alone justif[ied] the penalty imposed[.]” Id. at 256 (citing Ind. Code § 35-50-2-5(b) (2014) (setting the maximum sentence for a Level 3 felony at sixteen years)).

[71] In Moyers, the defendant received an aggregate 100-year sentence after being convicted of a Level 1 felony, a Level 3 felony, and a Level 4 felony. 277 N.E.3d at 37. There, the trial court imposed the maximum sentence permitted by law: a forty-year sentence on the Level 1 felony, Ind. Code § 35-50-2-4

(2023); a sixteen-year sentence on the Level 3 felony, I.C. § 35-50-2-5(b); and a twelve-year sentence on the Level 4 felony, Ind. Code § 35-50-2-5.5 (2014), all of which were consecutive. 27 After vacating the Level 4 felony conviction, the Court—as it had done in Wadle—did not remand for the trial court to reconsider its sentencing decision because it had already imposed the maximum possible sentence on each of the remaining convictions. 277 N.E.3d at 46. Instead, the Court merely instructed the trial court to amend its sentencing order to subtract the portion of the defendant’s sentence associated with the vacated conviction. Id.

[72] Here, unlike the defendants in Wadle and Moyers, Sisson did not receive the maximum possible aggregate sentence on his surviving convictions. Sisson faced up to sixteen years for his Level 3 felony kidnapping conviction, I.C. § 35- 50-2-5(b), and up to six years for his Level 5 felony domestic battery conviction, Ind. Code § 35-50-2-6(b) (2014). While he received the maximum of six years on the Level 5 felony conviction, the trial court imposed just fifteen years on the Level 3 felony. As this Court has previously explained,

[A] trial court is likely to view individual sentences in a multi-

count proceeding as part of an overall plan, a plan that can be overthrown if one or more of the convictions is reversed or reduced in degree. We join with those courts who allow the trial

27 In Moyers, the total of the consecutive terms of imprisonment for the Level 3 and Level 4 felony convictions was capped at twenty-years pursuant to Ind. Code § 35-50-1-2(d) (2025) (amended July 1, 2026). Moreover, the Moyers defendant had another forty years added to his sentence because he received two twenty-year enhancements for using a firearm to commit his crimes and for being a habitual offender. 277 N.E.3d at 37.

Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 44 of 55 court flexibility upon remand, including the ability to increase sentences for individual convictions without giving rise to a presumption of vindictive sentencing, so long as the aggregate sentence is no longer than originally imposed.

Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013), trans denied. Thus, on remand, the trial court may reconsider its sentencing decision in light of our holding that only Counts I and V may stand without violating substantive double jeopardy.

Conclusion [73] For these reasons, we affirm Sisson’s convictions for Level 3 felony kidnapping

(Count I) and Level 5 felony domestic battery (Count V) and remand with instructions for the trial court to vacate Sisson’s other convictions and their corresponding sentences. On remand, the trial court may amend Sisson’s sentences on Count I and V in a manner that is not inconsistent with this opinion.

[74] Affirmed in part and remanded.

Mathias, J., concurs in part and concurs in result in part with a separate opinion.

Kenworthy, J., concurs.

ATTORNEYS FOR APPELLANT Talisha Griffin Casey Farrington Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana

Ellen Meilaender Deputy Attorney General Indianapolis, Indiana

Mathias, Judge, concurring in part and concurring in result in part.

[75] I fully join the majority’s opinion in all parts except for its substantive double- jeopardy analysis involving Count III. As to that analysis, I concur in the result and write separately to discuss our Supreme Court’s analysis in Powell and the Court’s subsequent application of Powell in Moyers. I see no serious deviations from Powell in Moyers; our Supreme Court has already clarified its analysis in Powell. To summarize: in resolving Powell claims, I would follow our Supreme Court’s guidance in A.W. v. State, and I read our Supreme Court’s analysis in Moyers to have simply provided an efficient resolution of that argument.

[76] In Wadle and Powell, our Supreme Court articulated new tests for determining substantive double-jeopardy claims under Indiana law. See Moyers v. State, 277 N.E.3d 33, 36 (Ind. 2026). When the issue is whether the State has alleged or used the same facts to support separate statutory base offenses, our Supreme Court’s analysis in Wadle applies. See id. at 40. In Wadle, our Supreme Court originally articulated “a two-part inquiry” into such claims. 151 N.E.3d 227, 235 (Ind. 2020). First, we were to determine, “under our included-offense statutes, whether one charged offense encompasse[d] another charged offense.” Id. “If neither offense” was “an included offense of the other (either inherently or as charged), there [wa]s no violation of double jeopardy,” and the analysis would end. Id. at 248 (emphasis added). However, if the analysis did not end there, we were to proceed to the “[s]econd” step, namely, “look[ing] at the underlying facts—as alleged in the information and as adduced at trial—to determine whether the charged offenses are the ‘same.’” Id. at 235 (emphasis added). That step included determining whether the facts were so compressed as to “show only a single continuous crime.” Id.

[77] But when the substantive double-jeopardy claim is that the State has alleged the same statutory base offense more than once, the analysis proceeds under Powell to determine whether the defendant was charged and convicted of discrete, prosecutable acts. See Moyers, 277 N.E.3d at 40. In Powell, the Court articulated a different “inquiry involv[ing] a two-step process,” which the Court described as follows:

First, we review the text of the statute [of conviction] itself. 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. But if the statute is ambiguous, then we proceed to the second step of our analysis.

Under this second step, 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. 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.” If the defendant’s criminal acts are sufficiently distinct, then multiple convictions may stand; but if those acts are continuous and indistinguishable, a court may impose only a single conviction.

151 N.E.3d 256, 264-65 (Ind. 2020) (cleaned up; emphases added).

[78] The Wadle scenario happens more frequently, and so our Court was presented with it first. In particular, and as relevant here, multiple panels of our Court Court of Appeals of Indiana | Opinion 25A-CR-3174 | September 4, 2026 Page 48 of 55 were unsure of how to apply the “inherently or as charged” language at the first step as well as how to apply the “as alleged in the information and as adduced at trial” language in the second step. See A.W., 229 N.E.3d at 1067-69. That is, we were unsure of the proper sequencing between looking at the relevant statutes, looking at the charging information, and looking at the State’s factual theories at trial. See id. (discussing the confusion among panels of our Court).

[79] Thus, in A.W., our Supreme Court clarified and rearticulated the Wadle test as a three-step analysis: (1) determine whether our legislature clearly intended for multiple punishments for the convictions at issue (if it did, the analysis is over); (2) if legislative intent is not dispositive, determine whether the manner in which the State chose to write the charging information shows factually distinct offenses (if the information does so, the analysis is over; if it does not, the result is a presumptive double-jeopardy violation); and (3) if a presumptive double- jeopardy violation exists, determine whether the State’s factual theories at trial rebutted the presumptive violation by making clear to the fact-finder that each conviction was premised on sufficiently distinct facts. Id. at 1071-73. Steps 2 and 3 require the State to show not just sufficiently independent factual bases for the offenses but also that those factual bases are not so “compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Id. at 1073.

[80] A.W. is a Wadle opinion, not a Powell opinion. Because Wadle scenarios are so much more common than Powell scenarios, our Supreme Court has only addressed its Powell analysis on two occasions: in Powell itself and then in

Moyers. As for Powell, the Court first held that the statute at issue was ambiguous in identifying its unit of prosecution; thus, the Court had to construe the statute under our rules of statutory construction to discern the relevant unit of prosecution so that the Court could consider whether a multiplicity error had occurred. 151 N.E.3d at 265-68. The Court also noted that “the legislature is free to define whether a single statutory offense will subsist for a definite period or cover successive, similar occurrences. And when it does, we simply follow that guidance and our analysis is complete.” Id. at 268-69. However, no such legislative guidance existed in Powell. Id. at 269.

[81] Once the Court determined the relevant legislative intent, the Court then considered whether “the facts show[ed] that [the defendant’s] multiple gunshots amounted to distinguishable offenses . . . .” Id. at 268 (cleaned up). In doing so, the Court first discussed the charging information. Id. The information identified two distinct, alleged offenses based on the actual injuries to one victim and the near-misses of the other victim, rather than one offense “for . . . each [of the five or six] . . . shots fired.” Id. at 268-69. The State had argued on appeal that charging one offense for each shot fired would have been permitted under the statutes. Id. at 269. The Court concluded that such charging would be contrary to law. Id. From there, the Court turned to the State’s factual theories at trial; at this step, the Court concluded that the State had sufficiently supported two distinct, prosecutable offenses and not a single, continuous offense. Id. at 270.

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[82] In other words, both Wadle and Powell originally purported to describe “two step” inquiries. But both opinions instructed Indiana’s courts to look to three sources for determining an alleged substantive double-jeopardy violation: the relevant statutory language, the relevant charging information language, and the State’s factual theories at trial. In A.W., the Court clarified, at least as to Wadle, the proper sequence in considering those concerns: statutory language first, charging information second, trial theories third. The Court in Powell did not mandate that sequence explicitly, but it did employ that same sequence. Further, the Powell Court’s analysis was premised on a purported two-step inquiry that was similarly worded to Wadle in ways that had caused our Supreme Court in A.W. to clarify Wadle as really being a three-step analysis. And both Wadle and Powell also instructed that the State must show not only factually distinct offenses but offenses that are not so compressed as to constitute a single offense. I would thus conclude that A.W., while technically a Wadle case, is also instructive on how to analyze Powell claims.

[83] That brings us to our Supreme Court’s recent opinion in Moyers. In Moyers, the Court described Powell’s purported “two steps” as follows: “At step one of the test, we determine if the statute, whether expressly or by judicial construction, indicates a unit of prosecution.” 277 N.E.3d at 43 (cleaned up). Once the unit of prosecution has been determined, we then “turn to the facts to determine how many discrete offenses the evidence supports.” Id. But if it remains unclear whether a multiplicity error occurred, then, “[a]t step two,” we will “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.” Id. (cleaned up). The Court added that “[t]he question at this stage is 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. (cleaned up).

[84] The Court then said that its analysis of the case before it did not need to advance beyond the first step. Id. at 44. In particular, the Court stated that the relevant unit of prosecution was unambiguous. Id. Thus, the Court went straight to “[t]he ultimate question,” namely, “whether the evidence show[ed] [that the defendant had] committed one or two discrete acts . . . .” Id. And, looking at the State’s factual theories to the jury, the Court concluded that the State had demonstrated only one discrete, prosecutable act under the relevant criminal statutes. Id. at 44-45. Thus, the Court concluded that the defendant’s two convictions were contrary to law.

[85] The majority here notes and joins other panels of our Court that have recognized that Moyers’s articulation of the Powell analysis is not exactly the same “one-two” breakdown stated in Powell itself. See supra n.25. But this apparent difference between Powell and Moyers is not one of substance. Moyers said to determine relevant legislative intent first; then determine if the defendant’s multiple convictions are contrary to that intent with respect to the fundamental unit of prosecution; and, if the State supported discrete, prosecutable offenses, then also consider whether those offenses are nonetheless so compressed as to be one offense. That sequencing is not inconsistent with

Powell or with how A.W. recast Wadle’s similarly-worded two-part inquiry. And where the line gets drawn between “step one” and “step two” in that sequencing is ultimately not dispositive, even if a two-step inquiry is an accurate way to continue to think about a Powell analysis.

[86] More notable in Moyers’s application of the Powell test is not where the Court drew the line between the two purported steps but in the parts of the analysis the Court skipped over. Having determined the unit of prosecution, the Court went straight to whether the defendant’s two convictions were based on one discrete, prosecutable act. By implication, the Court did not need to discuss the charging information; there cannot be two convictions without two charges, and, had the charges unambiguously stated certain factual theories but the State’s arguments at trial in support of those charges been based on other factual theories, that would have presented a whole different set of issues. See O’Connor v. State, 234 N.E.3d 242, 246 n.2 (Ind. Ct. App. 2024). Further, with the Court having determined that the defendant had been erroneously twice convicted for one discrete, prosecutable act, the Court had no need to say anything at all about whether the facts were so compressed as to make two offenses one offense. In other words, the Court’s analysis in Moyers simply disposed of the case in front of it efficiently. 28

28 Indeed, the Court’s main focus in Moyers was not how to apply Powell but whether to apply Powell. See 277 N.E.3d at 36.

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[87] For these reasons, I would resolve Sisson’s argument that his conviction under Count III is contrary to law as follows. First, I concur with the majority’s assessment in paragraph 60 that Powell applies here, as Sisson’s convictions for Counts I and III share the same statutory base offense. Second, I agree with the majority’s recognition in paragraph 63 that the statutory unit of prosecution for kidnapping is unambiguous.

[88] Third, I note that there is some difference in how the State wrote the two charges here. Count I is premised on Sisson having removed Kristina from “the parking lot of IU Health Methodist Medical Plaza” while Count III is premised on him having removed her from “an Ace Hardware parking lot near IU Health Methodist Medical Plaza.” Appellant’s App. Vol. 2, pp. 58-59. Those are two different acts, and in theory they could have each been within discrete, prosecutable acts of kidnapping. But the totality of the charges makes clear that these two possibly distinct acts occurred near the same place, near the same time, and for the same reasons, and Count III is not otherwise premised on Count I having been completed. See, e.g., A.W., 229 N.E.3d at 1073. Thus, I would conclude that the State’s charges, at a minimum, fail to unambiguously demonstrate that the two charges are not based on facts that are so compressed as to be a single offense. See, e.g., id. (noting that doubts about the scope of the charges in an information are to be construed favorably to the defendant).

[89] Therefore, I would conclude that the charges present a rebuttable presumption of a substantive double-jeopardy violation between Counts I and III, and I would proceed to consider the State’s factual theories on those charges to the jury. And, here, the State expressly argued to the jury that its factual theory underlying Count III was identical to the State’s factual theory for the base offense underlying Count I. Tr. Vol. 3, pp. 193-94. That is, and contrary to the majority’s analysis, the State’s argument to the jury did not allege two distinct offenses that were so compressed as to be a single offense; the State’s argument was that these two charges were factually one discrete, prosecutable act.

[90] The State did not sufficiently demonstrate two discrete, prosecutable acts of kidnapping, and I therefore concur in the majority’s conclusion that Sisson’s conviction and sentence under Count III must be vacated.