Richardson v. State

717 N.E.2d 32, 1999 Ind. LEXIS 918, 1999 WL 784001

• Court: Indiana Supreme Court
• Decided: October 1, 1999
• Docket: 67S01-9910-CR-506
• Status: Published

Opinions

ON PETITION TO TRANSFER

DICKSON, J.

With today’s decision, we address the application of the Indiana Double Jeopardy Clause, Article I, Section 14 of the Indiana Constitution, as distinct from its federal counterpart in the Fifth Amendment to the United States Constitution.

The defendant-appellant, Robert Richardson, II, was convicted of robbery as a class C felony¹ and battery as a class A misdemeanor.² The defendant was sentenced to eight years imprisonment for the robbery and one year for the battery. The sentences were to run consecutively for a total of nine years imprisonment. On appeal, he contends that the convictions violate the Double Jeopardy Clause of the Indiana Constitution. The Court of Appeals affirmed the convictions. Richardson v. State, 687 N.E.2d 241 (Ind.Ct.App.1997). We grant transfer.

Prohibitions against double jeopardy protect the integrity of jury acquittals and the finality interest of defendants, shield against excessive and oppressive prosecutions, and ensure that defendants will not undergo the anxiety and expense of repeated prosecution and the increased probability of conviction upon reprosecution.³ Robert Matz, _ Note, Dual Sovereignty and the Double Jeopardy Clause: If at First You Don’t Convict, Try, Try Again, 24 Fordham Urb. L.J. 353, 356-57 (1997) (citations omitted). While double jeopardy provisions are found in both the U.S. Constitution and the Indiana Constitution, the defendant in this case does not allege any violation of the federal Double Jeopardy Clause.⁴ Rather, he claims the protection of the Indiana Double Jeopardy Clause.

The analysis and application of double jeopardy provisions have proven to be a significant judicial challenge. Commentators note that double jeopardy provisions, which appear straightforward and simple, are often extremely difficult to apply and the underlying jurisprudence enormously challenging and complex.⁵ Recently, in a series of decisions, this Court acknowledged that some of our decisions during the past twenty years misapplied federal double jeopardy jurisprudence. See Grinstead, v. State, 684 N.E.2d 482 (Ind.1997); Games v. State, 684 N.E.2d 466 (Ind.1997), modified on other grounds, 690 N.E.2d 211 (Ind.1997). We did not, however, address whether the.Double Jeopardy Clapse of the Indiana Constitution provides identical or different protections than its federal counterpart.⁶ Today, with, our opinions in this case and its companion cases, we address this issue.

The'Double Jeopardy Clause of the Indiana Constitution

Questions arising under the Indiana Constitution are to be resolved by “examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions.” Indiana Gaming Comm’n v. Moseley, 643 N.E.2d 296, 298 (Ind.1994). In construing the Constitution, “ ‘a court should look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy.’ ” Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind.1991) (quoting State v. Gibson, 36 Ind. 389, 391 (1871)). Because the “intent of the framers of the Constitution is paramount in determining the meaning of a provision,” Eakin v. State ex rel. Capital Improvement Bd. of Managers, 474 N.E.2d 62, 64 (Ind.1985), this Court will consider “the purpose which induced the adoption,” id. at 65, “in order that we may ascertain what the particular constitutional provision was designed to prevent,” Northern Ind. Bank & Trust Co. v. State Bd. of Fin., 457 N.E.2d 527, 529 (Ind.1983).

When this State was founded in 1816, the framers and ratifiers adopted a double jeopardy provision which provided that, “in all criminal prosecutions, the accused ... shall not -... be twice put in jeopardy for the same offence.” Ind. CONST, art 1, § 13 (1816). However, our ability to discern the framers’ intentions is limited because the journal of the 1816 Constitutional Convention does not report the delegates’ remarks or disclose procedural matters informative to the issue.⁷

When the present version of our Constitution was adopted in 1851, the original double jeopardy provision was only slightly modified. Article I, Section 14 provides in part: “No person shall be put in jeopardy twice for the same offense.”⁸ The provision was adopted with no debate and has not been modified to date. The “ ‘cardinal principle of constitutional construction [is] that words are to be considered as used in their ordinary sense.’ ” Ajabu v. State, 693 N.E.2d 921, 929 (Ind.1998) (quoting Tucker v. State, 218 Ind. 614, 670, 35 N.E.2d 270, 291 (1941)). Contemporaneous with the adoption of the 1851 Constitution, “offense” was defined as a “crime” or “transgression of law.” Noah WEBSTER, An AMERICAN DICTIONARY OF THE English Language 768 (1856). This definition of “offense,” however, does not explain the meaning of “same offense,” which has become a term of art. It is not surprising that, “[f]or decades, commentators and judges have attempted to define which offenses are the same, and the problem continues to be the focus of much of the contemporary scholarly criticism of double jeopardy doctrine.” Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. Pa. L.Rev. 101, 129 n. 81 (1995).

Despite the lack of discussion at the 1850-51 Convention regarding Indiana’s Double Jeopardy Clause, this Court has recognized that the intent of the framers and ratifiers derived from English common law double jeopardy principles. See State v. Elder, 65 Ind. 282, 284 (1879) (“That no person shall be put in jeopardy twice for the same offence is a common-law principle, which, we believe, is incorporated into the constitution of each of the States which compose the United States.”). With the understanding that the constitutional protection against double jeopardy is one of the “least understood” and “most frequently litigated provisions of the Bill of Rights,” Whalen v. United States, 445 U.S. 684, 699, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715, 728-29 (1980) (Rehnquist, J., dissenting), “[i]t has always been an accepted judicial technique to have resort to the common law in order to ascertain the true meaning of the double jeopardy clause,” Jay A. Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283, 283 (1963) (hereinafter Sigler, History). Thus, understanding our Double Jeopardy Clause requires that we go beyond its text. The common law is helpful in determining the framers’ understanding of the term “same offense.”.

Scholars trace double jeopardy principles back to ancient Greek,⁹ Roman,¹⁰ and biblical¹¹ sources. While some historians trace double jeopardy protections in England to the dispute between King Henry II and Archbishop Thomas á Becket in 1176,¹² the earliest treatise on the English common law, published in the late twelfth century, did not directly mention double jeopardy protections. Sigler, History, supra, at 291 (referring to Ranulf de Glan-ville, A Treatise on the Laws AND Customs of the Kingdom of EnglaND Composed in the Time of King Henry the Second). In the English case reporters between 1290 and 1535, “the word ‘jeopardy’ occurs only eleven times in reports involving criminal cases, and in only three of these instances was it used in the statement that a man’s life shall not be twice ‘put in jeopardy’ for the same offense.” Marion S. Kirk, “Jeopardy” During the Period of the Year Books, 82 U. Pa. L.Rev. 602, 604-05 (1934) (footnotes omitted).

During the 1600s and 1700s, double jeopardy protections were further examined by Lord Edward Coke and William Blackstone.¹³ Lord Coke only found double jeopardy protections in the three pleas of autrefois acquit (former acquittal), au-trefois convict (former conviction), and former pardon. Sigler, History, supra, at 296. By the late 1700s, a fourth plea of autrefois attaint¹⁴ was also recognized. Id. Writing 100 years after Coke, Blackstone began using the phrase “jeopardy” more often, noting that “the plea of autre-fois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England that no man is to be brought into jeopardy of his life, more than once, for the same offence.” 4 William Blacestone, Commentaries on the Laws of England *329 (1769).

As a further indicator of the framers’ understanding of the common law of double jeopardy, we note that the early American colonies departed in some respects from English common law, recognizing broader double jeopardy protections. For example, the bar against double jeopardy for Lord Coke depended on the reasons for the prior acquittal,¹⁵ whereas early American double jeopardy law barred retrial for any prior acquittal. Blackstone described double jeopardy protections as applying only to criminal felony prosecutions, whereas early American double jeopardy protections applied to all criminal prosecutions. Under English common law, jeopardy did not attach until a verdict or acquittal was actually rendered, thus allowing retrials following hung juries or mistrials, whereas early American double jeopardy law barred reprosecution in certain hung jury or mistrial circumstances. Further, early English double jeopardy protections were developed in the context of criminal law practice and procedure different from that which existed and continues to exist in this country. When Coke formulated the double jeopardy prohibition against second prosecutions for the same offense, there did not exist the same number of closely related offenses as we have today. As one commentator has noted, “the law distinguished among rape, arson, and murder, but not between ‘intimidating any person from voting’ and ‘interfering with his right to vote.’ ” Larry Simon, Note, Twice in Jeopardy, 75 Yale L.J. 262, 279 (1965).¹⁶ “At the time of Henry III there were only eleven felonies. In Coke’s time the number had risen to thirty.” Id. at 279 n. 75. By the time the U.S. Constitution was ratified, England had 160 different felonies. Id.

.-Also, early American colonies and states embodied double jeopardy principles in statutory and organic laws, unlike England. In 1641, the Bay Colony of Massachusetts drafted the Body of Liberties, which led to the adoption of the Massachusetts Code of 1648. “The fact that the Bay Colony reduced double jeopardy protection to a written form and expanded it beyond the common law guarantee demonstrates that the colonists regarded the concept to be fundamental.” Charles L. Cantrall, Double Jeopardy and Multiple Punishment: An Historical and Constitutional Analysis, 24 S. Tex. L.J. 735, 765 (1983).¹⁷ Although New Hampshire was the first (and only) state to include double jeopardy protections in its state constitution prior to the ratification of the U.S. Constitution,¹⁸ id. at 766, almost every state has now included some type of protection against double jeopardy in its state constitution, Sigler, History, supra, at 307-08; Simon, supra, at 262.

As states developed and applied their respective double jeopardy principles, two divergent analyses appeared for determining whether the offenses are the same: (1) the behavioral approach; and (2) the evi-dentiary approach. Id. at 269-70. The “behavioral approach focuses on the defendant’s conduct rather than on the prosecutor’s evidence. Courts which use this approach adopt an act, transaction, or intent test.” Id. at 270 (emphasis omitted). This behavioral approach (also referred to as the same transaction or same conduct approach) was explicitly rejected early by the Indiana Supreme Court in State v. Elder, 65 Ind. 282 (1879).¹⁹ The Elder Court noted that two lines of Double Jeopardy Clause interpretation appeared throughout the nation. One line held that state double jeopardy clauses provide “a more liberal rule ... in favor of the accused.” Id. at 284. This more liberal rule was the same transaction/conduct test, which prohibited multiple prosecutions arising out of the “same state of facts, although they may include several offences.” Id. at 285. Under the other line of interpretation, the evidentiary approach, state double jeopardy clauses “mean no more than the common-law principle.” Id. at 284. After reviewing Indiana court decisions and the decisions from other state and federal courts, the Elder Court rejected the more liberal test, stating that it could “not adopt the rule held in some States,' that the accused can not, in any case, be convicted but once upon the same facts when they constitute different offences.... ” Id. at 286-87.

The evidentiary approach (also referred to as the same evidence test) is apparent in the English common law case of The King v. Vandercomb & Abbot, 2 Leach 708, 168 Eng. 455 (1796). That court explained the test as follows: “if crimes are so distinct that evidence of the one will not support the other, it is as inconsistent with reason, as it is repugnant to the rules of law, to say that they are so far the same that an acquittal of the one shall be a bar to a prosecution for the other.” Id. at 717, 168 Eng. at 460.²⁰ However, American jurisprudence in the last two centuries provides no single, generally accepted articulation of the same evidence test. Rather, the test has assumed three separate formulations: a “required evidence test,”²¹ an “alleged evidence test,”²² and an “actual evidence test.”²³ Simon, supra, at 269-270. See also Haynes v. State, 249 Ga. 119, 288 S.E.2d 185, 188-90 (1989) (discussing these three tests in extensive detail).

In discerning the approach required by the Indiana Constitution, we first note that “[e]arly decisions of this Court interpreting our Constitution ... have been accorded strong and superseding precedential value.” Collins v. Day, 644 N.E.2d 72, 76 (Ind.1994).²⁴ In seeking the proper interpretation of our Double Jeopardy Clause, we draw from cases involving subsequent prosecutions because double jeopardy claims in multiple punishments cases did not emerge until after 1930,²⁵ and because this Court has not distinguished between double jeopardy protections in multiple punishment cases and those in subsequent prosecution cases. Our double jeopardy case law appears to fall into five different subsequent prosecution categories — those following a conviction;²⁶ a mistrial or the discharge of the jury or defendant;²⁷ a successful appeal;²⁸ an acquittal;²⁹ and a civil action.³⁰

Our earliest jurisprudence demonstrates that this Court did not limit itself to any single formulation of the evidence test, such as an “actual evidence test,” a “required evidence test,” or an “alleged evidence test,” in determining whether the offenses were the same. In the cases most contemporaneous (1859 to 1884) with the adoption of the 1851 Constitution, this Court did not identify a singular test or restrict the double jeopardy inquiry to the statutory elements or charging instruments, but instead considered all of the circumstances and evidence available to the reviewing court to determine whether the offenses were the same.

After the ratification of our Constitution in 1851, the Indiana Supreme Court considered whether the convictions were the “same offense” in Wininger v. State, 13 Ind. 540 (1859). In Wininger, the defendant was first convicted of assault and battery and then tried for the crime of riot, each arising out of the same event. Noting “conflict in the decisions of some of the sister states,” the Wininger Court considered whether double jeopardy was violated, holding that “the true rule, in prosecutions for offenses of this character, is, that where the gravamen of the riot consists in the commission of an assault and battery, then, a conviction for that assault, & c., would be a bar to a prosecution for a riot....” Id. at 541. However, “where the commission of an assault and battery was merely incidental to the riot, then a conviction for the one would not bar a prosecution for the other....” Id. Thus, “[t]he question would be, is the one act included in the other?”³¹ Id. Looking to the evidence introduced at trial, the Court reversed the second conviction, finding that the Double Jeopardy Clause was violated because “the gravamen of the riot was the assault and battery.” Id.

In Brinkman v. State, 57 Ind. 76 (1877), the defendant was indicted twice for selling alcohol to a minor on the same day. He was tried and convicted on the first indictment, and then tried and convicted on the second indictment. Addressing the defendant’s double jeopardy claim, the Court looked to the testimony introduced at the first trial which established that the defendant had sold alcohol twice to the minor, once in the morning and once in the afternoon. Again, without reciting any particular test, the Court looked to the testimony introduced at the second trial and found that it, too, established that the defendant had sold alcohol twice to the same minor, once in the morning and once in the afternoon. However, the Court noted that nothing in the record of either the first or second trial identified whether the convictions were for the morning sale or the afternoon sale, and that the indictments merely gave the date but did not differentiate between the time of day the crimes occurred. The Court found that a new trial was required because, “by the mode, adopted by the prosecution, of giving evidence as to both sales on each indictment, both convictions may have been secured for the same selling.” Id. at 79. The Court found this problematic because the jury in the first trial, “having the evidence as to both alleged sales before them, [could have] found that [the morning sale] was not satisfactorily established, but that the [afternoon sale] was.... ” Id. Then, in the second trial:

the evidence as to both alleged sales was given, and the court was satisfied that [the morning sale], regarded as not proved by the jury [in the first trial], was not proved [in the second trial], but that the [afternoon sale] was, and convicted the defendant [of the afternoon sale]; the conviction would be justified by the evidence for the State, and the defendant be twice convicted for the same offence [the afternoon sale].

Id.

In Greenwood v. State, 64 Ind. 250 (1878), the defendant challenged his conviction for a second assault and battery because he had already been convicted of assault and battery upon a different victim arising out of the same fight. The defendant argued that, regardless of “how many soever of assaults and batteries he may have committed during the period of excitement at the ball, they all amounted in law to but one offence.... ” Id. at 253. Without reciting a particular “test,” the Court looked to the testimony introduced at the first trial and, emphasizing the evidence presented, found that the defendant committed two separate assaults and batteries against two different victims arising from the same fight. Id. at 253-54. Thus, no double jeopardy violation occurred.

In State v. Elder, 65 Ind. 282 (1879), the defendant was indicted for three counts of attempting to produce a miscarriage upon Elizabeth Bradburn by: (1) inserting an instrument into her uterus; (2) using the hand. of another; and (3) administering a large quantity of medicine. Before the case went to trial, the defendant filed an answer asserting double jeopardy as an affirmative bar, arguing that he had previously been acquitted in a prosecution charging the murder of “a certain child, unnamed, of one Elizabeth Bradburn, by ... inserting [an] instrument into the uterus of the said Elizabeth Bradburn, and passing it about the fetus, thereby causing the miscarriage of the said Elizabeth Bradburn, and the death of said child.” Id. at 283-84. The trial court found for the defendant and dismissed the second indictment. Writing for a unanimous Court, Judge Biddle³² reversed, articulating the test as follows: if the facts show two or more offenses, but “the lesser of-fence is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first,” double jeopardy will not prevent two convictions, even though “the offences were both committed at the same time and by the same act.” Id. at 285. In finding that the defendant was not being twice prosecuted for the same offense, the Court noted:

An indictment for the murder of the unnamed child of Elizabeth Bradburn is by no means the same as an indictment charging the employment of certain means, with the intent to procure the miscarriage of Elizabeth Bradburn, although the same means were used to commit the offence in both cases. The lesser offence is not involved in the greater; the offences are not committed against the same person, and bear no resemblance to each other, either in fact or intent; the facts necessary to support a conviction on the [miscarriage charge] would not necessarily have convicted, nor would they even have tended to convict, upon the [murder charge].

Id. at 286. The Court concluded, “We can not adopt the rule held in some States, that the accused can not, in any case, be convicted but once upon the same facts when they constitute different of-fences .... ” Id. at 286-287.

The defendant in Jenkins v. State, 78 Ind. 138 (1881), was tried and convicted of assault and battery. He was also tried and convicted in a second trial for assault and battery, despite his claim of double jeopardy. The Court reversed the second conviction, noting that “[i]t is always necessary for one who [claims double jeopardy] to show that the offence for which he was convicted is the same as that involved in the prosecution in which the evidence is offered.” Id. at 134. Without reciting any particular test, it held that “[t]he evidence fairly shows that the offence for which the appellant was convicted [at the first trial] is the same as that described in the indictment in the case at bar.” Id. See also Foran v. State, 195 Ind. 55, 61, 144 N.E. 529, 531 (1924) (“The offenses charged must not only be the same in law, as would be shown by the instruments which charged the offenses, but that such offenses must be the same in fact.”).

Beginning in Davidson v. State, 99 Ind. 366 (1885), however, this Court, without expressly overruling precedent or noting a change in jurisprudence, shifted its consideration away from the available evidence to the statutory requirements.³³ In his first trial, the defendant was convicted of unlawfully carrying a deadly weapon. In a subsequent prosecution, he was convicted of threatening to use a pistol during the same transaction. The Court found these convictions did not violate double jeopardy, even though the “two prosecutions grew out of, and were based upon, the same transaction.” Id. at 367. The Court stated that the test is whether the charged crimes “are so far distinct that the evidence which would sustain one would not sustain the other.” Id. at 368. The charged crimes were (1) unlawfully carrying a deadly weapon, and (2) threatening to use a pistol. The Court looked to the statutory elements and held that “a material difference [existed] between the two offences defined by section 1984 [drawing or threatening to use a weapon], and those declared by section 1985 [carrying a concealed weapon or carrying a weapon openly with intent to injure someone], even conceding that the same pistol is used in every instance.” Id. at 367.

In State v. Reed, 168 Ind. 588, 81 N.E. 571 (1907), the Court found no double jeopardy violation when, in one trial, the defendant was charged with giving liquor to an intoxicated person in violation of statute and then convicted in a different trial (on the same day) of selling liquor to the same intoxicated person in violation of the same statute. The Court held that the statute defined three separate crimes: selling, bartering, and giving away liquor to an intoxicated person. Id. at 590, 81 N.E. at 572. The Court articulated the test as follows: “ “would the same evidence be necessary to secure a conviction in the pending, as in the former, prosecution?’ ” Id. at 591, 81 N.E. at 572 (quoting Smith v. State, 85 Ind. 553, 557 (1882)). The Court then looked to the identity of the challenged conviction, focusing on the essential elements necessary to convict: “Proof of a sale of intoxicating liquor by appellee to the person named in the indictment was one of the elements of the offense charged in this case, the proof of which was essential to conviction.... ” Id. However, “in the former case, not a sale, but a gift, of intoxicating liquor by appellee to the person named in the affidavit was an essential element to be established by the evidence to secure conviction.” Id. at 591-92, 81 N.E. at 572. Thus, the Court held, “It is evident therefore that the evidence necessary to secure appellee’s conviction of a charge of selling in violation of § 2219 ... would not have justified his conviction of the giving in violation of the same section charged in the former case.” Id. at 592, 81 N.E. at 572.

The defendant in Woodworth v. State, 185 Ind. 582, 114 N.E. 86 (1916), pled guilty to the charge that he sold alcohol to a person on May 1 without a license. The defendant was thereafter convicted of a separate charge of keeping and operating a place where alcohol was sold, also on May 1. The defendant contended that the evidence of the sale was also the evidence of keeping and operating the place and, therefore, that he was being convicted for the same offense. The Court rejected his argument without relying upon any particular test, finding that the statute “defines two separate and distinct” crimes. Id. at 585, 114 N.E. at 87. Looking to the statutory definitions, the court held:

The gravamen of the first offense defined by the section of the statute under consideration is the unlawful sale of intoxicating liquors by a person without a license, while that of the second offense defined is the keeping and operating of a place where such liquors are sold in violation of law, or the having of such liquors in possession for such purpose.

Id. at 585-86, 114 N.E. at 87.

In Durke v. State, 204 Ind. 370, 183 N.E. 97 (1932), the defendant was convicted of burglary and then convicted of conspiracy to commit a felony (burglary), arising out of the same transaction. He claimed double jeopardy prohibited the second conviction. The Court noted that “ ‘[t]he courts of this state ... have leaned more strongly to the “identity of offense” test, which is that the second charge must be for the same identical act and crime as [the first offense].’ ” Id. at 377-78, 183 N.E. at 100 (quoting Foran, 195 Ind. at 60, 144 N.E. at 530). This test asks: “ ‘Would the same evidence be necessary to secure a conviction in the pending, as in the former prosecution.’” Id. at 378, 183 N.E. at 100 (quoting Foran, 195 Ind. at 60, 144 N.E. at 530 (quoting Smith, 85 Ind. at 557) (other citations omitted)). Instead of looking to the specific evidence actually introduced at trial, the Court looked to what evidence would, in general, be necessary to secure convictions for both crimes:

[T]he essential proof in a prosecution for burglary would not be sufficient to convict one charged with the crime known as “conspiracy to commit a felony”— burglary. In the latter case the evidence must show a uniting or confederation of two or more persons to commit the burglary. In order to convict of the offense in the present case, it would not be necessary to prove actual participation in the felony, but in order to convict one charged with burglary, there must be proof connecting the party with the overt act.

Id. Thus, a prosecution for burglary would not prohibit a prosecution for conspiracy to commit a felony (burglary). Id. See also Dunkle v. State, 241 Ind. 548, 551, 553-54, 173 N.E.2d 657, 659-60 (1961) (looking to “well established rules of statutory construction, as well as upon the definition of the terms used ... [o]ur conclusion then is that to draw a weapon within the purview of § 448 ... is a separate and distinct offense from that of pointing or aiming a weapon under § 452.... Appellant was not therefore twice convicted for but one offense ....”)•

In 1978, the analysis under the Indiana Constitution was merged with the federal constitutional test:³⁴ “Now that we are bound by the federal Double Jeopardy Clause, it is more necessary than ever that we be in line with federal standards.” Elmore v. State, 269 Ind. 532, 537, 382 N.E.2d 893, 896 (1978). Although the Elmore Court erroneously concluded that the federal Supremacy Clause³⁵ required that the federal test govern all Indiana claims, it is clear that this Court, by 1978, considered both the Indiana Double Jeopardy Clause and the federal Double Jeopardy Clause to require the same test — a statutory “identity of offense” or “same evidence” test. Id. (noting the “obvious similarity” between the state and federal double jeopardy standards). Thus, when the Elmore Court merged our state double jeopardy analysis with the federal double jeopardy analysis, it was not a radical departure from our then-existing state constitutional analysis. The Elmore Court defined Indiana’s “identity of offense” or “same evidence” test: “whether if what is set out in the second indictment had been proved under the first, there could have been a conviction, or stated another way: would the same evidence be necessary to secure a conviction in the pending, as in the former prosecution.” Id. (quoting Foran, 195 Ind. at 60, 144 N.E. at 530). Similarly, the Elmore Court defined what it called “the Blockburger ‘identity of offense’ or ‘same evidence’ test,” id. at 540, 382 N.E.2d at 897, as “ ‘the difference or lack of difference in the evidence necessary to establish one particular crime as compared with that required to establish the other crime.’ ” Id. at 537, 382 N.E.2d at 896 (quoting Dunkle, 241 Ind. at 551, 173 N.E.2d at 658) (citations omitted). From this comparison, the Elmore Court concluded that “our method of analysis in cases involving multiple count offenders closely paralleled the methodology employed by federal courts for protecting Fifth Amendment guarantees.” Id.

In 1982, this Court in Tawney v. State, 439 N.E.2d 582 (Ind.1982), introduced a new approach, in which a reviewing court was required to “look to the manner in which the offenses are charged and not merely to the statutory definitions of the offenses.” Id. at 588. This analysis looked to the specific factual allegations regarding the means by which the charged offenses were alleged to have been committed. As we have noted, “Tawney did not attribute this additional requirement to an independent state double jeopardy protection found in Article 1, Section 14 of the Indiana Constitution.” Carter v. State, 686 N.E.2d 834, 838 (Ind.1997). Rather, it relied upon lesser-included jury instruction case law. See Tawney, 439 N.E.2d at 588.

During the twenty years following El-more, this Court frequently decided double jeopardy issues by looking to the offenses as charged, believing that this approach was required by federal double jeopardy jurisprudence, and often referring in passing to the Indiana Constitution. We have recently recognized that this methodology is an inaccurate statement of federal double jeopardy law as established by Blockburger. Carter, 686 N.E.2d at 837; Grinstead, 684 N.E.2d at 486; Games, 684 N.E.2d at 474. Considering Elmore’s merger of Indiana double jeopardy law into federal constitutional analysis and its declaration that our state’s double jeopardy jurisprudence must “be in line with federal standards,” 269 Ind. at 537, 382 N.E.2d at 896, it is not surprising that we did not separately evaluate the Indiana Constitution as an additional, independent source of double jeopardy protection. Instead, we generally addressed double jeopardy claims by applying the prevailing understanding of federal jurisprudence and merely referred to the Indiana Double Jeopardy Clause. This Court today recognizes that these post-Elmore, pre-Games cases do not constitute precedent regarding the application of the Indiana Double Jeopardy Clause. Our action today should be understood to supercede these cases.³⁶

From our review of the constitutional text, the history and circumstances surrounding its adoption, and the earliest cases interpreting and applying the provision, we conclude that Indiana’s Double Jeopardy Clause was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression. While none of the early cases presented a comprehensive analysis, a generally articulated test, or a standard of review for double jeopardy claims, the holdings in these decisions do reflect a common theme. A criminal transgression was a person’s conduct that violated a statutorily defined crime. In seeking to determine whether two criminal transgressions were the same, this Court in its earliest decisions did not restrict its review only to a comparison of statutory elements of the crime or to an analysis of the language in the charging instruments. Rather, this Court also reviewed the actual evidence presented at trial when available.

Synthesizing these considerations, we therefore conclude and hold that two or more offenses are the “same offense” in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.³⁷ Both of these considerations, the statutory elements test and the actual evidence test, are components of the double jeopardy “same offense” analysis under the Indiana Constitution.

Statutory Elements Test: Could Separate Offenses Be Established?

The objective of this test is to determine whether the essential elements of separate statutory crimes charged could be established hypothetically. In this test, the charged offenses are identified³⁸ by comparing the essential statutory elements of one charged offense with the essential statutory elements of the other charged offense. Inspecting the relevant statutes and the charging instrument to identify those elements which must be established to convict under the statute,³⁹ this review considers the essential statutory elements to determine the identity of the offense charged, but does not evaluate the manner or means by which the offenses are alleged to have been committed, unless the manner or means comprise an essential element. Once the essential elements of each charged offense have been identified,⁴⁰ the reviewing court must determine whether the elements of one of the challenged offenses could, hypothetically, be established by evidence that does not also establish the essential elements of the other charged offense.⁴¹

In this case, defendant Richardson contends that his convictions for robbery and class A misdemeanor battery violate double jeopardy. Robbery as a class C felony is defined as follows:

A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear; commits robbery, a class C felony.

Ind.Code § 35^42-5-1 (1993). The defendant was charged as follows: “Robert M. Richardson II ... on or about the 31st day of August, 1996 ... did then and there knowingly or intentionally take property from another person, to-wit: a wallet containing $700 belonging to Jeffrey W. Koe-nig by using or threatening the use of force.” Record at 4. Under the statutory elements test, we focus on the essential elements comprising the charged offense of robbery: (1) the defendant (2) knowingly or intentionally (3) took property from (4) Koenig (5) by using or threatening the use of force on Koenig. The defendant could not be convicted at trial if these essential elements were not established.⁴² Although the State may choose to do so, it is not required to include detailed factual allegations in the charging instrument. See Ind.Code § 35-34-1-2.⁴³ For example, in this case, the State could have charged as follows: Robert M. Richardson, II, on or about the 31st day of August 1996 did intentionally take property belonging to Jeffrey W. Koenig by using force. Had the State chosen to do so, the charging information would have been valid, as the essential elements were specified.

The second offense at issue in this case is battery, as a class A misdemeanor. The statute provides that “[a] person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery....” Ind.Code § 35-42-2-1 (1993). The offense becomes a class A misdemeanor if “it results in bodily injury to any other person.” Id. The charging instrument alleged that the defendant “on or about the 31st day of August, 1996 ... did then and there knowingly or intentionally touch another person in a rude, insolent or angry manner that resulted in bodily injury in that the said defendant beat a certain Jeffrey W. Koe-nig with his fist to the extent that the said [Koenig] suffered bodily injury.” Record at 5. The essential elements of the class A misdemeanor battery charge are: (1) the defendant (2) knowingly or intentionally (3) touched (4) Koenig (5) in a rude, insolent, or angry manner (6) resulting in bodily injury to Koenig.⁴⁴

Having identified the essential elements comprising the offense, we compare the essential elements of the two challenged offenses. Each offense must contain at least one element which is separate and distinct from the other offense so that the same evidence is not necessary to convict for both offenses. See Durke, 204 Ind. at 378, 183 N.E. at 100 (citing Foran, 195 Ind. at 60, 144 N.E. at 530 (citing Smith, 85 Ind. at 557)). In this case, the essential elements of the offense of battery as a class A misdemeanor include the element of a resulting bodily injury, which is not included in the essential elements of robbery. Furthermore, battery requires a touching in a rude, insolent, or angry manner, whereas robbery merely requires the use or threat of force. Also, an essential element of the robbery is the taking of some type of property from Koenig, which is separate and distinct from the essential elements of the battery. Under our statutory elements test, each offense of which the defendant was convicted contains at least one essential element that is separate and distinct from the other offense, and, therefore, the State could hypothetically prove separate offenses without using the same evidence. Thus, under the statutory elements test, there is no double jeopardy violation.⁴⁵

Actual Evidence Test: Were Separate Offenses Established at Trial?

As previously noted, the examination of the evidence presented at trial was an integral component of the double jeopardy analysis employed in those decisions of this Court immediately following the adoption of our Double Jeopardy Clause. We preserve this component, the actual evidence test, as a separate consideration to be used in analyzing the “same offense” issue in a claim under the Indiana Double Jeopardy Clause. Even if the first consideration, the statutory elements test, does not disclose a double jeopardy violation, the actual evidence test may. Under this inquiry, 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.⁴⁶

This second test in our Indiana Double Jeopardy Clause “same offense” analysis differs significantly from federal jurisprudence under Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. “The Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offenses charged.” Grady v. Corbin, 495 U.S. 508, 521 n. 12, 110 S.Ct. 2084, 2093 n. 12, 109 L.Ed.2d 548, 564 n. 12 (1990), overruled on other grounds, United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (second emphasis added).⁴⁷

At oral argument, the State asserted that, because the number of statutes and offenses has grown exponentially since our Indiana Constitution was ratified, and because Blockburger provides a clear, bright-line double jeopardy test, we should adopt Blockburger to govern our state Double Jeopardy Clause. On the other hand, the defendant argued that this Court should adopt the “manner in which the offenses are charged” analysis. We disagree with both, believing the original application of the Indiana Double Jeopardy Clause to be broader than these two approaches.

In the present case, the evidence presented at trial establishes the following facts. On August 31, 1996, many people were at a lake area consuming alcohol and using drugs. The defendant noticed that one of those present, Jeff Koenig, appeared to possess a considerable amount of money. The defendant, along with Koenig and two other men, got into an automobile apparently to drive to another party. The automobile stopped on a bridge, and the men exited the vehicle, ostensibly to relieve themselves. When Koenig exited the vehicle, he was hit from behind with a beer bottle and knocked to the ground. The three men repeatedly kicked and beat him. Two of the men then held Koenig down while the third took Koenig’s billfold from his pocket. After his billfold was removed, Koenig was pushed over the side of the bridge. The men left Koenig and returned to the party, bragging about what they had just done.

The defendant contends that the evidence of the beating prior to the robbery forms the basis of both convictions. We note, however, that the evidence presented at trial also demonstrated that, after the defendant and his companions beat Koenig and took his billfold — thus completing the robbery — they then pushed Koenig off the bridge. While this post-robbery conduct could potentially indicate a subsequent, factually separate battery justifying a separate conviction, there was no actual evidence to prove the element of resulting bodily injury from this separate conduct.⁴⁸ From the evidence presented, we find that the defendant has demonstrated a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of robbery were also used to establish the essential elements of the class A misdemeanor battery. Application of the actual evidence test thus discloses that convicting and sentencing the defendant on both of these offenses violates the Indiana Double Jeopardy Clause.

When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. See, e.g., Campbell v. State, 622 N.E.2d 495, 500 (Ind.1993) (affirming reduction of class C felony battery to class B misdemeanor battery to avoid double jeopardy). If it will not, one of the convictions must be vacated. In the interest of efficient judicial administration, the trial court need not undertake a full sentencing reevaluation, but rather the reviewing court will make this determination itself, being mindful of the penal consequences that the trial court found appropriate. In the present case, the crime of robbery does not exist in a form less serious than the class C felony, for which the defendant was convicted. But a lesser form of battery could result, a class B misdemeanor in the absence of the element of resulting bodily injury, instead of the class A misdemeanor, for which he was convicted. Even if considered in this reduced class, however, there is a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of robbery would also be used to establish battery as a class B misdemean- or. Because both convictions therefore cannot stand, we vacate the conviction with the less severe penal consequences and leave standing the robbery conviction.

Conclusion

Because the defendant’s convictions for both robbery and battery as a class A misdemeanor, under the circumstances presented, violate the Double Jeopardy Clause of the Indiana Constitution, we vacate the conviction and sentence for battery as a class A misdemeanor. This cause is remanded to the trial court for disposition consistent with this opinion.

SHEPARD, C.J., concurs. SULLIVAN, J., concurs with separate opinion. SELBY, J., concurs in result with separate opinion. BOEHM, J., concurs in result with separate opinion, in which SELBY, J., concurs.

1 . Ind.Code§ 35-42-5-1.

2 . Ind.Code§ 35-42-2-1.

3 . Prohibitions against double jeopardy protect against: (1) reprosecution for an offense after a defendant has already been convicted of the same offense in a previous prosecution (North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Trittipo v. State, 13 Ind. 360 (1859)); (2) reprosecution of a defendant after an acquittal (Pearce; State v. Davis, 4 Blackf. 345 (Ind.1837)); (3) multiple punishments for the same offense in a single trial (Pearce; Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938)); (4) reprosecution of a defendant after the conviction has been reversed for insufficient evidence (Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)); (5) criminal reprosecution of a defendant in limited circumstances following a previous civil prosecution (Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994)); (6) reprosecution of a defendant in limited circumstances after a mistrial has been declared (Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); State v. Leunig, 42 Ind. 541 (1873)).

4 . The federal Double Jeopardy Clause provides in part: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const, amend. V.

5 . See, e.g., Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275, 284 (1981) ("[T]he decisional law in the [double jeopardy] area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.”); United States v. Larkin, 605 F.2d 1360, 1361 (5th Cir.1979) (“This case involving the arcane principles of double jeopardy and collateral estoppel is not susceptible of bright-letter law or black-letter law; the areas are most often gray, and dimly to be seen. Needless to say, one entering this field must do so with trepidation.”); Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale LJ. 1807, 1807 (1997) (“Modern Supreme Court case law is full of double jeopardy double talk.”); Eli J. Richardson, Eliminating Double-Talk from the Law of Double Jeopardy, 22 Fla. St. U.L.Rev. 119, 119 (1994) ("A great deal of confusion, however, underlies this renowned, appealing, and seemingly self-explanatory constitutional guarantee.”).

6 . See Grinstead, 684 N.E.2d at 485-86; Games, 684 N.E.2d at 473 n. 7. See also Valentin v. State, 688 N.E.2d 412, 413 (Ind.1997) (saving this issue "for another day”). Footnote 7 in Games included the following unfortunate sentence; "However, the defendant does not provide Indiana authority, and we find none from this Court, establishing an independent state double jeopardy protection based upon an analysis of the Indiana Constitution.” 684 N.E.2d at 473 n. 7. As discussed below and in the separate opinion of Justice Boehm, the early cases of this Court extensively discuss the application of the Indiana Double Jeopardy Clause. Footnote 7 of Games should not be read for the proposition that there is no independent double jeopardy protection under the Indiana Constitution.

7 . See Journal of the Convention of the Indiana Territory, reprinted in 61 Ind. Mag. of Hist. 89-155 (1965).

8 . Discussing our state Double Jeopardy Clause, this Court in Gillespie v. State, 168 Ind. 298, 80 N.E. 829 (1907), noted that a “provision in a former constitution of a state, which has been interpreted or construed by the highest court thereof, and thereafter is readopted and incorporated into a new or later constitution ... was intended by the framers and ratifiers of the new or later constitution that the provision should have and be accorded the same interpretation or construction which was placed upon it by the highest court prior to its readoption.” Id. at 310-11, 80 N.E. at 833. Unfortunately, only five reported decisions between 1817 and 1850 involved double jeopardy, and none addressed the situation in the case at bar. See State v. Johnson, 8 Blackf. 533 (Ind.1847); Weinzorpflin v. State, 7 Blackf. 186 (Ind.1844); Davis v. State, 6 Blackf. 494 (Ind.1843); State v. Mead, 4 Blackf. 309 (Ind.1837); State v. Davis, 4 Blackf. 345 (Ind.1837).

9 . Demosthenes, Athenian statesman who lived in fourth century B.C. Greece, wrote: "Now the laws forbid the same man to be tried twice on the same issue, be it a civil action, a scrutiny, a contested claim, or anything else of the sort.” 1 Demosthenes 589 (J. Vince trans. 1962).

10 . The Digest of Justinian pronounced that "[tjhe governor should not permit the same person to be again accused of a crime of which he has been acquitted.” Dig. Just 48.2.7, reprinted in, 11 Corpus Juris Civilis 17 (A. Scott trans. 1973). Paulus, a leading Roman jurist, in explaining the duties of the proconsul, recorded that "[t]he Senate decreed that no one can be accused of the same crime under several laws.” Dig. Just. 48.2.14, reprinted in, 11 Corpus Juris Civilis 20. The maxim "Nemo debet bis puniré pro uno delic-to ” originates in Roman law in 289 A.D. and declares that "[ajnyone who has been charged with a public crime, cannot again be accused of the same crime by another person. If, however, several offences arise from the same act, and complaint is only made of one of them, it is not forbidden for an accusation of another to be filed by some other individual.” Statement of the Same Emperors to Honoratus (Sept. 289), in 14 S.P. Scott, The Civil Law 360 (1932) (from Book IX of the Code of Justinian). The editor notes that "[t]his salutary and equitable rule is undoubtedly the original source whence is derived the provision of our organic law prohibiting any person ‘for the same offence to be twice put in jeopardy of life or limb/ as set forth in [Amendment] V of the Constitution.” Id. at 360 n. 1.

11 . In 391 A.D., Saint Jerome interpreted a verse from the Old Testament, which reads in part that "he will not take vengeance twice on his foes,” Nahum 1:9 (R.S.V.), as establishing the principle that "God judges not twice for the same offence.” Martin L. Friedland, Double Jeopardy 5 (1969).

12 . See Id.

13 . "The most important individuals in the history of double jeopardy are undoubtedly Coke and Blackstone. These two writers clarified the concept and first gave it the importance which it subsequently attained in the United States.” Sigler, History, supra, at 294.

14 . Autrefois attaint is the "[fjormer forfeiture of property to the government.” Gary DiBianco, Note, Truly Constitutional? The American Double Jeopardy Clause and Its Australian Analogues, 33 Am.Crim. L.Rev. 123, 126 n. 22 (1995).

15 . For example, an acquittal based upon self-defense was a bar to all future prosecutions, but acquittals on other grounds would not bar future prosecutions. See Jay A. Sigler, Double Jeopardy: The Development of a Social and Legal Policy 18 (1969) (citing Edward Coke, The Third Part of the Institutes of the Laws of England 213 (4th ed. 1669)).

16 . This commentary has been accorded significant regard. See Susan R. Klein, Civil In Rem Forfeiture and Double Jeopardy, 82 Iowa L.Rev. 183, 242 n. 242 (1996) (noting that this commentary "remains the seminal article in this area”). In his treatise on criminal procedure, Joshua Dressier notes, "The Supreme Court’s 'favorite saying’ about the double jeopardy clause” — that double jeopardy consists of three protections against successive prosecution after acquittal, successive prosecution after conviction, and multiple punishment — was "adopted from [this] law review article.” Joshua Dressier, Understanding Criminal Procedure 431 (1991) (citing Peter Westen, The Three Faces of Double Jeopardy: Reflecting on Government Appeals of Criminal Sentences, 78 Mich. L.Rev. 1001, 1062 (1980)).

17 . Section 42 stated: “No man shall be twice sentenced by Civil Justice for one and the same Crime, offence, or Trespasse.” Cant-rall, supra, at 764 n. 132 (citing Massachusetts Body of Liberties, 1641: A Copie of the Liberties of the Massachusetts Colonie in New England, reprinted in 1 Bernard Schwartz, The Bill of Rights, A Documentary History 76 (1971)).

18 . "No subject shall be liable to be tried, after an acquittal, for the same crime or offense.” N.H. Const, pt. 1, art. XVI.

19 . This rejection of the same transaction/conduct test in Indiana has been recognized consistently since 1879. See Ford v. State, 229 Ind. 516, 520-21, 98 N.E.2d 655, 657 (1951) ("If appellant is claiming that the 'same transaction’ test should be applied, that test was expressly repudiated in [Indiana case law].”) (citing Elder); Foran v. State, 195 Ind. 55, 60, 144 N.E. 529, 530 (1924) (noting that the defendant was arguing "that the offenses charged ... grew out of the same transaction; and [he] quotes the test applied in some jurisdictions ... known as ‘the same transaction test.’ This test has been expressly repudiated in this state.”). However, we note that, in one isolated case prior to 1879, the Court employed without discussion what seems to be a behavioral test to find double jeopardy violated by the two convictions for the murders of two different persons because "the killing of two or more persons by the same act constitutes but one crime....” Clem v. State, 42 Ind. 420, 427 (1873). Clem based its decision on State v. Damon, 2 Tyl. 387 (Vt.1803), in which the Vermont Supreme Court held that, when the defendant had " ‘wounded two persons in the same affray, at the same instant of time, and with the same stroke,’ ” Clem, 42 Ind. at 429 (quoting Damon, 2 Tyl. at 390), it was the same offense, and the defendant could not be held to answer again for the same offense, Clem, 42 Ind. at 430 (citing Damon, 2 Tyl. at 390-91). In a later decision, this Court reviewed the Clem decision and found that it applied to circumstances in which there was but one single act:

In Cfem[], it is held that, if a person assaults and kills two persons with a single shot, or with a single blow of an instrument, so that the injury to both results from one indivisible act, it is one offense against the State, and a conviction of having murdered one will bar a prosecution for the murder of the other.

Hughes v. State, 212 Ind. 577, 581, 10 N.E.2d 629, 631 (1937).

20 .The first court in this country to apply the Vandercomb same evidence approach was the Massachusetts Supreme Judicial Court in Commonwealth v. Roby, 29 Mass. (12 Pick.) 496, 503 (1832). Soon thereafter, that court restricted the test, holding that "[a] conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.” Morey v. Commonwealth, 108 Mass. 433, 434 (1871). Present federal jurisprudence is based upon Morey, which had stated, "A single act may be an offense against two statutes ... if each statute requires proof of an additional fact which the other does not....” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932) (quoting Morey, 108 Mass. at 434) (emphasis added).

21 . The required evidence test determines whether the offenses are the same based on an analysis of the statute. Simon, supra, at 269.

22 . The alleged evidence test "finds offenses the same if there is sufficient similarity between the allegations of the two indictments.” Id.

23 . The actual evidence test assesses whether the offenses are the same based on "the evidence presented at the two trials.” Id. at 270.

24 . The federal Double Jeopardy Clause did not apply to criminal prosecutions in state courts until 1969. Before this date, protection against double jeopardy existed only under state constitutions. In 1969, the U.S. Supreme Court applied its "selective incorporation” doctrine and determined that the federal Double Jeopardy Clause was thereafter applicable to and binding upon the states under the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). As we recently noted in Ajabu, Indiana case law construing an Indiana constitutional provision prior to the date of such selective incorporation is of great significance "in determining whether the Indiana Constitution demands more than its federal counterpart.” Ajabu, 693 N.E.2d at 929 (citing Peterson v. State, 674 N.E.2d 528, 533-34 (Ind.1996); Moran v. State, 644 N.E.2d 536, 540 (Ind.1994)).

25 . Pivak v. State, 202 Ind. 417, 175 N.E. 278 (1931); Lawson v. State, 202 Ind. 583, 177 N.E. 266 (1931); Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938); Carter v. State, 229 Ind. 205, 96 N.E.2d 273 (1951); Havener v. State, 234 Ind. 148, 125 N.E.2d 25 (1955); Woods v. State, 234 Ind. 598, 130 N.E.2d 139 (1955); Mims v. State, 236 Ind. 439, 140 N.E.2d 878 (1957); Tungate v. State, 238 Ind. 48, 147 N.E.2d 232 (1958), overruling recognized by Elmore v. State, 176 Ind.App. 306, 375 N.E.2d 660 (1978); Dunkle v. State, 241 Ind. 548, 173 N.E.2d 657 (1961); Dowd v. Todd, 243 Ind. 232, 184 N.E.2d 4 (1962); Sutton v. State, 248 Ind. 1, 221 N.E.2d 430 (1966).

26 . Ambrose v. State, 6 Ind. 351 (1855); State v. Moore, 6 Ind. 436 (1855); Bruce v. State, 9 Ind. 206 (1857); Trittipo v. State, 13 Ind. 360 (1859); Wininger v. State, 13 Ind. 540 (1859); Jackson v. State, 14 Ind. 327 (1860); Fritz v. State, 40 Ind. 18 (1872), reasoning overruled in Woodworth v. State, 185 Ind. 582, 114 N.E. 86 (1916); Clem, 42 Ind. 420; Brinkman v. State, 57 Ind. 76 (1877); State v. Hattabough, 66 Ind. 223 (1879); Greenwood v. State, 64 Ind. 250 (1878); Bryant v. State, 72 Ind. 400 (1880); Jenkins v. State, 78 Ind. 133 (1881); Halloran v. State, 80 Ind. 586 (1881); Davidson v. State, 99 Ind. 366 (1885); Boswell v. State, 111 Ind. 47, 11 N.E. 788 (1887); Pehlman v. State, 115 Ind. 131, 17 N.E. 270 (1888); Freeman v. State, 119 Ind. 501, 21 N.E. 1101 (1889); Ledgerwood v. State, 134 Ind. 81, 33 N.E. 631 (1893); State v. Reed, 168 Ind. 588, 81 N.E. 571 (1907); Woodworth, 185 Ind. 582, 114 N.E. 86; Anderson v. State, 187 Ind. 94, 118 N.E. 567 (1918); Heier v. State, 191 Ind. 410, 133 N.E. 200 (1921); Cambron v. State, 191 Ind. 431, 133 N.E. 498 (1922); Thomas v. City of Indianapolis, 195 Ind. 440, 145 N.E. 550 (1924); Alyea v. State, 198 Ind. 364, 152 N.E. 801, 153 N.E. 775 (1926); Durke v. State, 204 Ind. 370, 183 N.E. 97 (1932); Arrol v. State, 207 Ind. 321, 192 N.E. 440 (1934); Hanks v. State, 225 Ind. 593, 76 N.E.2d 702 (1948); Ford, 229 Ind. 516, 98 N.E.2d 655, cert. denied, 342 U.S. 873, 72 S.Ct. 116, 96 L.Ed. 656; Gullett v. State, 233 Ind. 6, 116 N.E.2d 234 (1953).

27 . Davis v. State, 6 Blackf. 494 (Ind.1843); Weinzorpflin v. State, 7 Blackf. 186 (Ind.1844); Wright v. State, 5 Ind. 290 (1854); Wright v. State, 5 Ind. 527 (1854); Miller v. State, 8 Ind. 325 (1856), overruled in part by State v. Walker, 26 Ind. 346 (1866); Morgan v. State, 13 Ind. 215 (1859); State v. Wamire, 16 Ind. 357 (1861); State ex rel. Sumpter v. Barbour, 17 Ind. 526 (1861); Rulo v. State, 19 Ind. 298 (1862); Walker, 26 Ind. 346; State v. Nelson, 26 Ind. 366 (1866); Shaffer v. State, 27 Ind. 131 (1866); Bescher v. State, 32 Ind. 480 (1870); State v. Leunig, 42 Ind. 541 (1873); Kingen v. State, 46 Ind. 132 (1874); Weaver v. State, 83 Ind. 289 (1882); Maden v. Emmons, 83 Ind. 331 (1882), overruled in part by Gillespie v. Rump, 163 Ind. 457, 72 N.E. 138 (1904); Fowler v. State, 85 Ind. 538 (1882); Doles v. State, 97 Ind. 555 (1884); Adams v. State, 99 Ind. 244 (1884); Hensley v. State, 107 Ind. 587, 8 N.E. 692 (1886); State v. Leach, 120 Ind. 124, 22 N.E. 111 (1889); Gillespie, 168 Ind. 298, 80 N.E. 829; Blocher v. State, 177 Ind. 356, 98 N.E. 118 (1912); Harlan v. State, 190 Ind. 322, 130 N.E. 413 (1921); Mood v. State, 194 Ind. 357, 142 N.E. 641 (1924); Mann v. State, 205 Ind. 491, 186 N.E. 283, 187 N.E. 343 (1933); Foreman v. State, 214 Ind. 79, 14 N.E.2d 546 (1938); Armentrout v. State, 214 Ind. 273, 15 N.E.2d 363 (1938); Holt v. State, 223 Ind. 217, 59 N.E.2d 563 (1945); State v. Soucie, 234 Ind. 98, 123 N.E.2d 888 (1955); State v. Taylor, 235 Ind. 632, 137 N.E.2d 537 (1956); Johnson v. State, 252 Ind. 79, 246 N.E.2d 181 (1969); Majors v. State, 252 Ind. 672, 251 N.E.2d 571 (1969).

28 . Joy v. State, 14 Ind. 139 (1860); Fritz, 40 Ind. 18; Ex parte Bradley, 48 Ind. 548 (1874); Mills v. State, 52 Ind. 187 (1875); State v. Balsley, 159 Ind. 395, 65 N.E. 185 (1902); State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N.E. 808 (1931); Jacoby v. State, 210 Ind. 49, 199 N.E. 563 (1936); McDowell v. State, 225 Ind. 495, 76 N.E.2d 249 (1947); Slack v. Grigsby, 229 Ind. 335, 97 N.E.2d 145 (1951), criticized in State v. Gurecki, 233 Ind. 383, 119 N.E.2d 895 (1954); Todd v. State, 229 Ind. 664, 101 N.E.2d 45 (1951), criticized in Gurecki, 233 Ind. 383, 119 N.E.2d 895; Gurecki, 233 Ind. 383, 119 N.E.2d 895; Cichos v. State, 246 Ind. 680, 208 N.E.2d 685, 210 N.E.2d 363 (1965); Layton v. State, 251 Ind. 205, 240 N.E.2d 489 (1968).

29 . State v. Mead, 4 Blackf. 309 (Ind.1837); State v. Davis, 4 Blackf. 345 (Ind.1837); State v. Johnson, 8 Blackf. 533 (Ind.1847); State v. Warner, 14 Ind. 572 (1860); State v. Elder, 65 Ind. 282 (1879); Burk v. State, 81 Ind. 128 (1881); Smith v. State, 85 Ind. 553 (1882); Brackney v. State, 182 Ind. 343, 106 N.E. 532 (1914); Barker v. State, 188 Ind. 263, 120 N.E. 593 (1918); Foran, 195 Ind. 55, 144 N.E. 529.

30 . State ex rel. Scobey v. Stevens, 103 Ind. 55, 2 N.E. 214 (1885); Burgh v. State ex rel. McCormick, 108 Ind. 132, 9 N.E. 75 (1886); State ex rel. Beedle v. Schoonover, 135 Ind. 526, 35 N.E. 119 (1893); State ex rel. Duensing v. Roby, 142 Ind. 168, 41 N.E. 145 (1895).

31 . The Court provided the following illustration of a similar scenario which would not violate the Double Jeopardy Clause:

[WJhere several [persons] should riotously attempt to tear down a house, and, in that attempt, the owner of the house, in the defense thereof, should be assaulted, .. . the purposed and main offense would be, the demolition of the house, but at the same time the parties might, in the perpetration of that offense, commit other unlawful acts for which a prosecution could be maintained, as well as for the riot.

32 . Judge Horace P. Biddle was also one of delegates to the 1851 Constitutional Convention which adopted our state Double Jeopardy Clause. Journal of the Convention of the People of the State of Indiana to Amend the Constitution 3 (1851). Judge Biddle also joined the aforementioned opinions in Greenwood v. State, 64 Ind. 250 (1878), and Brinkman v. State, 57 Ind. 76 (1877).

33 . Defendant Richardson refers to cases after 1884 that use the term “facts” in conjunction with our double jeopardy test. See Kokenes, 213 Ind. at 479, 13 N.E.2d at 526 (" 'When the facts constitute two or more offences (quoting Elder, 65 Ind. at 285) (emphasis added). However, in Kokenes, the Court did not inquire into the evidence introduced at trial or the specific factual allegations in the charging instruments, i.e., • "the manner in which the offenses are charged.” Rather, it reviewed the statutory elements and based its decision accordingly. See also Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309 ("whether each [statutory] provision requires proof of an additional fact which the other does not”) (emphasis added).

34 . For claims asserting violations of the federal Double Jeopardy Clause, "the test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of an additional fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309.

35 . U.S. Const, art. VI (the U.S. Constitution "shall be the supreme law of the land; and the judges in every state shall be bound thereby....”).

36 . These include the following cases: Neal v. State, 659 N.E.2d 122 (Ind.1995); Chiesi v. State, 644 N.E.2d 104 (Ind.1994); Buie v. State, 633 N.E.2d 250 (Ind.1994); Webster v. State, 628 N.E.2d 1212 (Ind.1994); Campbell v. State, 622 N.E.2d 495 (Ind.1993); Wills v. State, 595 N.E.2d 242 (Ind.1992); Woodcox v. State, 591 N.E.2d 1019 (Ind.1992); Woods v. State, 547 N.E.2d 772 (Ind.1989); Ellis v. State, 528 N.E.2d 60 (Ind.1988); Jones v. State, 523 N.E.2d 750 (Ind.1988); Jones v. State, 518 N.E.2d 479 (Ind.1988); King v. State, 517 N.E.2d 383 (Ind.1988); Hansford v. State, 490 N.E.2d 1083 (Ind.1986); Malott v. State, 485 N.E.2d 879 (Ind.1985); Flowers v. State, 481 N.E.2d 100 (Ind.1985); Deamus v. State, 479 N.E.2d 1319 (Ind.1985); Bevill v. State, 472 N.E.2d 1247 (Ind.1985). Some of our decisions during this period, however, involved only our understanding of federal jurisprudence and did not refer to our state constitutional provision. See, e.g., Kennedy v. State, 674 N.E.2d 966 (Ind.1996); Gregory-Bey v. State, 669 N.E.2d 154 (Ind.1996); Collins v. State, 659 N.E.2d 509 (Ind.1995); Bivins v. State, 642 N.E.2d 928 (Ind.1994); Jackson v. State, 625 N.E.2d 1219 (Ind.1993); Derado v. State, 622 N.E.2d 181 (Ind.1993); Bean v. State, 460 N.E.2d 936 (Ind.1984).

37 . While this case and its companion cases probe important aspects of state and federal double jeopardy jurisprudence, our review and discussion are not intended to be exhaustive. Rather, the “same offense” issue is but one aspect of double jeopardy jurisprudence. Under some circumstances, even when two or more offenses constitute the same offense under a federal or state "same offense” test, no double jeopardy violation will be found to have occurred. See, e.g., Arizona, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (holding that the federal Double Jeopardy Clause does not prohibit a retrial when the mistrial was a "manifest necessity,” even if the mistrial is declared over the defendant’s objection); U.S. v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (holding that the federal Double Jeopardy Clause does not bar reprose-cution for a mistried offense when the defendant requested or acquiesced in the mistrial); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922) (holding that, under the federal Double Jeopardy Clause, a conviction or an acquittal in one jurisdiction does not bar a reprosecution by another jurisdiction for the "same offense”); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) (holding that the federal Double Jeopardy Clause does not bar the reprosecution of a defendant for a mistried offense when the jury is unable to reach a verdict). These other aspects, however, are not at issue in this case.

38 . Under this test, "the second charge must be for the same identical act and crime as [the first offense].” Durke, 204 Ind. at 378, 183 N.E. at 100 (quoting Foran, 195 Ind. at 60, 144 N.E. at 530). "[I]t must be said that the essential proof in a prosecution for burglary would not be sufficient to convict one charged with the crime known as 'conspiracy to commit a felony'—burglary.” Id. See also Reed, 168 Ind. 588, 81 N.E. 571.

39 . "[IJdentity tests depend upon the evidence required [under the statute] to convict, not the evidence actually introduced at trial.” Simon, supra, at 273 (emphasis added).

40 . This inquiry is quite simple when a facial comparison of the charged crimes clearly shows that separate offenses are involved. For example, if a defendant is charged with murdering A and murdering B, further inquiry into whether the offenses are the "same offense” for double jeopardy purposes is not warranted because the charged crimes are different on their face. They involve different victims. Similarly, if a defendant is charged with robbing a particular store on Monday and then again on Friday, the offenses are, facially, not the same. If a defendant is arrested and found to possess both cocaine and marijuana on his person, possession of cocaine under Indiana Code section 35-48-4-6 and possession of marijuana under Indiana Code section 35-48-4-11 are, facially, not the same offense.

41 .This statutory elements test, which is one component of our "same offense” analysis under the double jeopardy provision of the Indiana Constitution, is similar to the "same elements” test, which comprises the federal double jeopardy analysis under Blockburger. The Blockburger Court stated the federal standard as follows:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. Before Blockburger, the Supreme Court had already stated:

"The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each stat-ule requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489, 490 (1911) (quoting Morey, 108 Mass. at 434) (quoted in part in Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309). More recently, the Court has indicated:

[T]he Blockburger test focuses on the proof necessary to prove the statutory elements rather than on the actual evidence to be presented at trial. Thus we stated that if " 'each statute requires proof of an additional fact which the other does not,' ” the offenses are not the same under the Block-burger test.

Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228, 235 (1980) (citations omitted). The Court also noted:

As Blockburger and other decisions applying its principle reveal, the Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.

Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616, 627 n. 17 (1975) (citations omitted).

42 . The statutory language regarding "putting any person in fear” is not an essential element in this case because the State charged him with "using or threatening the use of force.” Similarly, the exact manner or means by which force was imposed is not essential, as the State need only show that some type of force was actually used. Additionally, the type of property stolen by the defendant is not essential under the statute because the statute only requires some type of property be taken from Koenig. However, under the carjacking statute, the specific type of property — a motor vehicle — would be an essential element in determining the identity of the offense. See Ind.Code § 35-42-5-2 (1993) ("A person who knowingly or intentionally takes a motor vehicle from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear; commits carjacking, a Class B felony.”) (emphasis added).

43 . Interpreting this statute, we have specifically held that the charging instrument does not have to include “additional facts describing the injury inflicted or how it was inflicted.” Moody v. State, 448 N.E.2d 660, 662 (Ind.1983). "The charging instrument informed appellant of the statutory offense with which he was charged, the time and the place of the commission of the offense, the identity of the victim of the crime, and the type of weapon he used. We hold the information was drafted with sufficient specificity to inform appellant of the nature of the charge against him.” Id. See also Evans v. State, 497 N.E.2d 919, 922 (Ind.1986) (rejecting defendant's argument that the State was required to specify the physical acts which constituted the robbery, stating, "Where the charging instrument informs the defendant of the offense with which he is charged, the time and the place of its commission, the victim's identity and the type of weapon used, the instrument is drafted with sufficient specificity and need not disclose the specific conduct by the defendant which led to the injury.”) (citation omitted).

44 . The exact nature of bodily injury and the exact means or manner by which the touching occurred are not essential elements. The State need only show that some type of rude, insolent, or angry touching and some bodily injury occurred. See supra note 43 and accompanying text.

45 . In contrast, the Indiana Double Jeopardy Clause would be violated under this essential elements test when, for example, a defendant is convicted and sentenced for both robbery and felony murder based on the killing of a clerk in the course of the robbery. See, e.g., Mitchell v. State, 270 Ind. 4, 382 N.E.2d 932 (1978). If the charging instrument identifies the same robbery as the basis for both the felony murder and the robbery counts, proof of the robbery would be an essential element of the statutory offense of felony murder. In this example, there is no possibility that any evidence could establish the essential statutory elements of the felony murder charge without also establishing the essential statutory elements of the robbery charge. The charged robbery does not contain at least one essential element that is separate and distinct from the charged felony murder offense. But a defendant would not be twice placed in jeopardy for the "same offense” under the Indiana Double Jeopardy Clause if, for example, he is convicted and sentenced for both robbery and felony murder and the identities of the victims of the murder and the robbery are different. See, e.g., Reaves v. State, 586 N.E.2d 847, 851 (Ind.1992).

46 . Our early cases are not conclusive as to the standard of review to be applied. In Brinkman, 57 Ind. 76, the Court may have considered the possibility that the same evidence may have resulted in two separate convictions. In other cases, however, the Court did not utilize this standard but rather appears to have engaged in its own assessment to determine if the evidence reasonably provided an independent factual basis for two separate offenses. See, e.g., Wininger, 13 Ind. 540; Greenwood, 64 Ind. 250; Jenkins, 78 Ind. 133. We believe that the use of the “reasonable possibility” standard fairly implements the protections of the Indiana Double Jeopardy Clause and also permits convictions for multiple offenses committed in a protracted criminal episode when the case is prosecuted in a manner that insures that multiple guilty verdicts are not based on the same evidentiary facts.

47 . The result in Games, 684 N.E.2d 466, was not based upon any change in federal multiple punishments jurisprudence resulting from the U.S. Supreme Court decision in Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556. Games was not based upon Dixon in particular, but upon federal double jeopardy jurisprudence in general. As we noted in Games, Dixon dealt with the U.S. Supreme Court's treatment of successive prosecutions, which had changed in recent years under Grady, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548. Prior to Grady, the Court focused exclusively on statutory elements in cases of both successive prosecution and multiple punishment. Until it was overruled by Dixon in 1993, Grady added a "second prong” to the Blockburger test for successive prosecution cases, requiring a court to consider whether the conduct underlying the offenses was the same. Neither Grady nor Dixon dealt with multiple punishments, except to reaffirm that the multiple punishment analysis was not affected by the Grady /Dixon problems. See Games, 684 N.E.2d at 476 & n. 11 (discussing Dixon and noting that the Supreme Court's treatment of multiple punishments has remained unchanged since the early 1900s and that the Court’s treatment of successive prosecution analysis was changed for only the three years between Grady and Dixon). See also Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); Albernaz, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275; Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228; Whalen, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715; Iannelli, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616; Blockburger, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915); Gavieres, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489.

48 . Although the lack of evidence of bodily injury resulting from being shoved off the bridge (as required for a separate and independent class A misdemeanor battery) is determinative, we further observe that the closing arguments of counsel, in discussing the proof of battery, focused solely on the evidence of the beating that preceded the removal of the wallet. Furthermore, the preliminary instructions in this one-day trial advised the jury that the battery charge alleged that "defendant beat [Koenig] with his fist to the extent that [Koenig] suffered bodily injury.” Record at 41. The jury instructions and presentations of counsel to the jury can be helpful to the reviewing court in its analysis of the actual evidence to determine whether a jury used the same evidence to establish multiple offenses. Because the court’s instructions and counsel's remarks are not evidence, however, neither would be determinative in the presence of actual evidence that the jury reasonably could have used to independently establish the essential elements of the separate offenses.