FILED Jul 17 2024, 9:18 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Tyrone D. Bradshaw, Appellant-Defendant
v.
State of Indiana, Appellee-Plaintiff
July 17, 2024 Court of Appeals Case No. 23A-CR-2700 Appeal from the Marion Superior Court The Honorable Mark D. Stoner, Judge The Honorable Andrew J. Borland, Magistrate Trial Court Cause No. 49D32-2110-F5-30451
Opinion by Judge Mathias
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 1 of 18 Judge Riley concurs. Judge Felix dissents with separate opinion.
Mathias, Judge.
[1] Tyrone D. Bradshaw appeals his convictions for Level 3 felony criminal
confinement and Level 6 felony pointing a firearm. Bradshaw raises a single
issue for our review, namely, whether his two convictions are contrary to
Indiana’s protections against substantive double jeopardy. Following our
Supreme Court’s recent opinion in A.W. v. State, 229 N.E.3d 1060 (Ind. 2024),
we reverse Bradshaw’s conviction for Level 6 felony pointing a firearm and
remand with instructions for the trial court to vacate that conviction and its
corresponding sentence.
Facts and Procedural History [2] On September 25, 2021, Bradshaw lived with Angila Chavez, with whom he
had had an on-and-off relationship. That evening, Chavez went out to a bar
with some neighbors. As she left, Bradshaw told her, “if I call, you best answer
your phone.” Tr. Vol. 2, p. 62.
[3] Around 3:00 a.m. the next morning, Chavez missed a call from Bradshaw.
When she called him back, he told her to “bring your a** home now.” Id. at 63.
Chavez left her friends and returned to her residence.
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 2 of 18 [4] As she entered through the door, Bradshaw “jumped up” from a recliner near
the entrance and “frisked” her, apparently “looking for a man’s phone
number.” Id. at 63-64. After he failed to find a number on her, he went through
her purse, and then he went through her phone. On her phone, he found old
messages between Chavez and a man from a time period when Chavez and
Bradshaw were not together. Bradshaw “started shaking the phone in front of
[Chavez’s] face,” asking, “who’s this?” Id. at 66. The next thing Chavez knew,
she was on the ground, and Bradshaw was strangling her.
[5] As Chavez was starting to black out, Bradshaw stopped strangling her, but as
she started to get up, he knocked her back down and began to strangle her
again. While she was down, he bit her face. He then “put a knife to [her]
throat” and threatened to kill her. Id. at 68. He got off of her again, sat back
down, and pulled out a 9mm handgun. Chavez asked to go to the bathroom,
and Bradshaw told her that, if she went anywhere near her gun in her bedroom,
he would shoot her. Chavez then said that she needed medication from her
bedroom, but she would not touch her gun. Bradshaw followed her, “cocked
his gun[,] and pointed it directly at” Chavez. Id. at 70.
[6] Chavez got her medication and returned to the living room. There, Bradshaw
sat near her and kept switching between pointing the knife and pointing the
firearm at her. Bradshaw told Chavez that she was “not allow[ed] . . . to leave.”
Id. at 71. The two remained in their “standoff” until it turned light outside. Id.
at 72. At that time, Bradshaw “got up and left.” Id.
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 3 of 18 [7] The State charged Bradshaw with seven offenses, including Level 3 felony
criminal confinement and Level 6 felony pointing a firearm. The State’s
charging information for those two offenses stated:
On or about September 26, 2021, [Bradshaw] did knowingly or intentionally point a firearm, to-wit: a silver .380 caliber pistol,[1] at [Chavez].
***
On or about September 26, 2021, [Bradshaw] did knowingly confine [Chavez] without the consent of [Chavez], said [Bradshaw] being armed with a deadly weapon, to wit: a handgun[.]
Appellant’s App. Vol. 2, p. 75.
[8] Chavez testified at Bradshaw’s ensuing bench trial. Thereafter, in its closing
statement, the State discussed the evidence between those two charges as
follows:
Regarding [Level 6 felony pointing a firearm], at this point, the evidence is getting fairly repetitive. But the Court heard [Chavez] testify about the fact that the defendant had a 9mm gun, that he pointed the gun at her, and that he waved the gun around and
1 There was no evidence at Bradshaw’s trial of any firearm other than the 9mm handgun, and Bradshaw does not suggest on appeal that the identification of a “.380 caliber pistol” in the charging information resulted in any reversible error. See Appellant’s App. Vol. 2, p. 75; see also O’Connor v. State, 234 N.E.3d 242, 246 n.2 (Ind. Ct. App. 2024) (citing Young v. State, 30 N.E.3d 719, 724-28 (Ind. 2015)).
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 4 of 18 used it to threaten her. So for purposes of [this offense], that evidence is fairly straightforward . . . .
Regarding [Level 3 felony criminal confinement], and this is kind of, once again, a bit repetitive because we have a bit of overlap in terms of what happened here. But . . . they’re sitting on the couch. After this event happens, the defendant’s sitting in the chair, she’s sitting on the couch, and the defendant is basically telling her that no one can leave. And he’s switching between the knife and the gun and standing there or sitting there telling her that she better not tell the police.
Throughout the incident, she also indicated that he was following her around the house with the gun, and she did not feel free to leave during this entire event. . . .
Tr. Vol. 2, pp. 96-97.
[9] The trial court found Bradshaw guilty of Level 3 felony criminal confinement
and Level 6 felony pointing a firearm. The court then entered its judgment of
conviction and sentenced Bradshaw accordingly.
[10] This appeal ensued.
Discussion and Decision [11] On appeal, Bradshaw contends that his convictions for both Level 3 felony
criminal confinement and Level 6 felony pointing a firearm are contrary to
Indiana’s protections against double jeopardy. We review such questions de
novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024). Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 5 of 18 [12] Indiana’s protection against substantive double jeopardy prohibits “multiple
convictions for the same offense in a single proceeding.” Id. at 1066. To
determine if a substantive double jeopardy violation has occurred, we apply a
“three-part test based on statutory sources . . . .” Id. The first step is to look to
the statutory language of the offenses at issue; if that language “clearly permits
multiple punishments,” then “there is no violation of substantive double
jeopardy.” Id. (quotation marks omitted). Here, Bradshaw and the State agree
that the first step is not dispositive, and so we proceed to the second step.
[13] Under the second step, as clarified by our Supreme Court in A.W., we look to
the face of the charging information to discern if the factual bases identified for
the charges implicate our statutory definitions of an “included offense.” Id. In
particular, the Indiana Code defines an included offense as an offense 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 (2021). As our Supreme Court further clarified, an
offense is an included offense under that statute where the charging information
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 6 of 18 states that the “means used” to commit the alleged greater offense “include all
of the elements of the alleged lesser included offense.” A.W., 229 N.E.3d at
1067 (quotation marks omitted); see also Demby v. State, 203 N.E.3d 1035, 1045
(Ind. Ct. App. 2021) (finding that all of the material elements of aggravated
battery were necessarily found to demonstrate the means used to commit
attempted murder), trans. denied. 2
[14] Here, the face of the charging information simply tracks the statutory language
for both offenses, aside from inserting Bradshaw’s and Chavez’s names into
their respective locations and aside from identifying a .380-caliber handgun as
the firearm used in one offense and a “handgun” as the firearm used in the
other offense. Appellant’s App. Vol. 2, p. 75; see also I.C. §§ 35-42-3-3(b)(3)(A),
35-47-4-3(b) (2021). Those facts alone do not demonstrate that the two offenses
were separate offenses, as the means used to commit the greater offense could
have included all of the elements of the alleged lesser offense based on the face
of the information. See A.W., 229 N.E.3d at 1067. Thus, the charging
information here is ambiguous as to whether the pointing-a-firearm conviction
may have been included in the criminal-confinement conviction. See O’Connor v.
State, 234 N.E.3d at 246. In such circumstances, our Supreme Court made clear
2 We recognize that our Supreme Court has previously held that, where the “same evidence used by the jury to establish pointing a firearm was also included among the evidence establishing the . . . elements of the criminal confinement,” convictions for both offenses could not stand. Burnett v. State, 736 N.E.2d 259, 263 (Ind. 2000), overruled in part on other grounds, Ludy v. State, 784 N.E.2d 459, 463 n.2 (Ind. 2003). However, as Burnett turned on the “reasonable possibility” test under the now-overruled analysis of Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999), rather than on legislative intent, we do not consider Burnett binding here.
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 7 of 18 in A.W. that we “must construe those ambiguities in the defendant’s favor, and
thus find a presumptive double jeopardy violation” at this step in the analysis.
229 N.E.3d at 1069. We therefore proceed to step three of our double-jeopardy
analysis.
[15] Under step three, the State may rebut the presumptive double jeopardy
violation by using the facts presented at trial to demonstrate a “distinction
between what would otherwise be two of the ‘same’ offenses.” A.W., 229
N.E.3d at 1071. However, “if the facts show only a single continuous crime,
and one statutory offense is included in the other,” the State may not obtain
cumulative convictions. Id. (quotation marks omitted).
[16] Here, the State cannot demonstrate a distinction between the criminal-
confinement allegation and the pointing-a-firearm allegation based on the facts
from trial. To the contrary, the prosecutor repeatedly recognized in his closing
statement that the evidence between the two offenses was “repetitive” and in
“overlap.” Tr. Vol. 2, pp. 96-97. As the prosecutor explained to the jury, in the
early morning hours of September 26, 2021, Bradshaw repeatedly pointed his
firearm at Chavez, and his pointing of that firearm at her at those times was
within the means used by him to confine her.
[17] Our Supreme Court made clear in A.W. that it is the State’s burden to expressly
delineate the facts at trial in a manner that will rebut a presumptive double
jeopardy violation that the State itself has created by the opaque manner in
which it has chosen to write the charging information. Instead of delineating
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 8 of 18 the facts here, however, the State conflated them. And, contrary to the dissent’s
analysis, we do not think A.W. directs us to consider an alternative use of the
facts that the State did not advocate for at trial in order to rebut the presumptive
double jeopardy violation for the State. Accordingly, the State failed to rebut
the presumptive double jeopardy violation under step three of our substantive
double jeopardy analysis.
[18] Where a defendant is found guilty of both the greater offense and an included
offense, the proper procedure is to vacate the conviction for the included offense
and to enter a judgment of conviction and sentence only upon the greater
offense. See, e.g., Demby, 203 N.E.3d at 1046. We therefore reverse Bradshaw’s
conviction for Level 6 felony pointing a firearm and remand to the trial court
for it to vacate that conviction and sentence accordingly.
[19] Reversed and remanded with instructions.
Riley, J., concurs. Felix, J., dissents with separate opinion.
ATTORNEYS FOR APPELLANT Gustav S. Gygi Matthew D. Anglemeyer Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 9 of 18 Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 10 of 18 Felix, Judge, dissenting.
[20] Regarding the majority’s review of whether the charges are factually included, I
write separately to further explain why, based upon A.W., we must conclude
that the offenses are included “as charged.” Next, regarding the majority’s
conclusion that there is a substantive double jeopardy violation, I respectfully
dissent. In light of our Supreme Court’s decision in A.W., I believe that step
three of the Wadle analysis shows that Bradshaw’s convictions do not violate
protections against double jeopardy. See Wadle v. State, 151 N.E.3d 227, 249
(Ind. 2020). I believe the facts presented at trial demonstrate Bradshaw
committed two distinct offenses. Accordingly, I would affirm the trial court’s
decision.
[21] At step two of Wadle, we “apply our included-offense statutes to determine
statutory intent.” A.W. v. State, 229 N.E.3d 1060, 1066 (Ind. 2024) (quoting
Wadle, 151 N.E.3d at 248). Looking to Indiana Code section 35-31.5-2-168, an
“included offense” is an offense 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
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 11 of 18 public interest, or a lesser kind of culpability, is required to establish its commission.
[22] “[C]ourts must confine their Step 2 analysis to (1) the included-offense statute
(whether the offenses are ‘inherently’ included), and (2) the face of the charging
instrument (whether the offenses ‘as charged’ are factually included).” A.W.,
229 N.E.3d at 1068. When “‘neither offense is an included offense of the other
(either inherently or as charged) there is no violation of double jeopardy and the
analysis ends’—full stop.” Id. at 1067 (quoting Wadle, 151 N.E.3d at 248).
Unfortunately, there is confusion between the two terms “inherently included”
and “factually included.” Because of the confusion, I review them separately.
First, I review this statute with the charging information in this case, and I
conclude that the pointing-a-firearm charge has elements that do not need to be
proven in the confinement-while-armed charge and vice versa. Therefore, the
pointing-a-firearm offense is not inherently included in the confinement-while-
armed offense. See Ind. Code § 35-31.5-2-168. So, I must then determine if the
pointing-a-firearm charge is included factually (or “as charged”) in the
confinement-while-armed charge. See A.W., 229 N.E.3d at 1067.
[23] As instructed by the majority in A.W.: “[W]hen assessing whether an offense is
factually included, a court may examine only the facts as presented on the face
of the charging instrument. This includes examining the ‘means used to
commit the crime charged,’ which must ‘include all of the elements of the
alleged lesser included offense.’” 229 N.E.3d at 1067 (emphasis in original).
The majority in A.W. then reiterated, “The factually included inquiry at this
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 12 of 18 step is thus limited to facts on the face of the charging instrument.” Id. To do
this, we review the two charging informations:
Appellant’s App. Vol. II at 75.
[24] The alleged facts in the pointing-a-firearm charge are (1) Bradshaw (2)
knowingly or intentionally (3) pointed a firearm (4) at Chavez. The facts in the
confinement-while-armed charge are (1) Bradshaw (2) knowingly (3) confined,
without the consent of, (4) Chavez, and (5) while being armed with a handgun.
As I review the “means used to commit” the confinement-while-armed charge,
I determine that the “while being armed with a handgun” is an element that is
factually different from “pointing a firearm.” We have long recognized the
distinction between merely possessing a firearm and using a firearm. Nicoson v.
State, 938 N.E.2d 660, 662 (Ind. 2010) (citing Mickens v. State, 742 N.E.2d 927,
931 (Ind. 2001)). There is no requirement under Indiana Code section 35-42-3-
3(3)(A) that the State prove Bradshaw used the firearm in the commission of
the crime to obtain a conviction. See Mallard v. State, 816 N.E.2d 53, 57 (Ind.
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 13 of 18 Ct. App. 2004). In Mallard v. State, the defendant confined a victim while he
had a handgun in his pocket, but he did not show the victim the handgun or
threaten to use it. Id. We affirmed the conviction because “the weapon was in
his pocket at all relevant times and a jury could reasonably conclude that
Mallard could have used the handgun as a deadly weapon.” Id. Further, there
is no requirement that a defendant has actual possession of the firearm during
the course of the confinement to receive an elevated charge. See Alvies v. State,
905 N.E.2d 57, 62 (Ind. Ct. App. 2009). “[O]ur supreme court has held that an
initial show of deadly force and the victim’s awareness of the defendant’s
continued constructive possession of the weapon are sufficient to satisfy the
‘armed with a deadly weapon’ element.” Id. (citing Potter v. State, 684 N.E.2d
1127, 1137 (Ind. 1997)). Therefore, under Wadle, I would end the analysis at
step two and conclude there was no substantive double jeopardy violation. See
Wadle, 151 N.E.3d at 249.
[25] However, in A.W., our Supreme Court added a new layer of review in step two.
That new layer asks courts to determine if there is any ambiguity in the two
charging informations. As the Court later explained, ambiguity is determined if
it is “conceivable” that a fact not included in the charging information could
have happened. A.W., 229 N.E.3d at 1070. The Court illustrated how this
works in practice by reviewing Harris v. State 186 N.E.3d 604 (Ind. Ct. App.
2022). A.W., 229 N.E.3d at 1069–70. In Harris, the State charged Harris with
intimidation while armed and pointing a firearm. Id. at 1070. The charging
information alleged that while the intimidation occurred, Harris “did draw or
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 14 of 18 use a handgun.” Id. In Harris, the State argued that since the intimidation-
while-armed charge did not include who the gun was drawn or used against, the
facts on the charging information were different and the analysis should end
with a conclusion that there is no double jeopardy violation. Id. The Court
believed that the State’s argument illustrated how step two of Wadle gives the
State an asymmetrical benefit that could no longer be condoned. Id. This is so
because it is also conceivable that the victim that the gun was “used or drawn”
on could have been one and the same as the victim in the pointing-a-firearm
charge. Id. In order to mitigate the asymmetrical benefit, our Supreme Court
added the ambiguity/conceivability layer to the step two analysis. Id. at 1069.
[26] Although the Court stated more than once that in step two “[t]he factually
included inquiry at this step is thus limited to facts on the face of the charging
instrument,” A.W. 229 N.E.3d at 1067, the new layer now requires us to
consider what other facts are “conceivable,” id. at 1070. If any conceivable
facts from one charge include all the elements of the other charge, then the
charging information is ambiguous and we must presume a double jeopardy
violation. Id. at 1069. With this new guidance from A.W., I agree with the
majority’s conclusion that the charging information is ambiguous. Because it is
ambiguous, there is a presumptive double jeopardy violation; thus, we must
proceed to step three of Wadle. Id.
[27] Before I proceed to step three, I need to explain why I find there is an ambiguity
in the charging information. In the present case, unlike in Harris, we know the
victim, Chavez, is the same victim in both counts. Also, unlike in Harris, the
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 15 of 18 confinement-while-armed statute requires the defendant to be “armed,” which
is different from Harris, where the charging information alleged that Harris “did
draw or use” the gun. As explained previously, a person does not need to either
“draw” or “use” a gun to be “armed” with a gun. So, why is the charging
information ambiguous then? It is ambiguous because in the charging
information for the confinement-while-armed charge it is conceivable that
Bradshaw was not only armed but that, while he was armed, he could have
been pointing a gun at Chavez. Therefore, the “means used to commit the
crime charged,” could have included “all of the elements of the alleged lesser
included offense.” Id. at 1067. Consequently, this charging information is
ambiguous, and construing the ambiguity in favor of Bradshaw, I conclude a
presumptive double jeopardy violation exists. 3 See A.W., 229 N.E.3d at 1070.
[28] I now proceed to step three of Wadle, where I “examine the facts underlying
those offenses, as presented in the charging instrument and as adduced at
trial.” A.W., 229 N.E.3d at 1071 (emphasis in original) (quoting Wadle, 151
N.E.3d at 249). I believe the State has adequately rebutted the presumptive
double jeopardy violation that resulted from the ambiguity at step two by
showing a distinction between the two offenses charged. See id.
3 I believe language similar to the following could have been used to avoid the determination that the charging information was ambiguous:
On or about September 26, 2021, [BRADSHAW] did knowingly confine [CHAVEZ] without the consent of [CHAVEZ], said [BRADSHAW] being armed with a deadly weapon, to wit: a handgun, to wit: by placing said handgun on his lap, but not pointing it at Chavez.
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 16 of 18 [29] Here, I believe the facts at trial show two distinct offenses committed by
Bradshaw. Bradshaw pointed the firearm at Chavez before the confinement
began. Before Chavez went to her bedroom to get medication, Bradshaw told
her that he would shoot her if she went near her gun. Bradshaw pointed the
gun at Chavez while she was accessing the drawer next to her gun. Chavez got
her medication and voluntarily walked back to her living room where she and
Bradshaw both sat down.
[30] After they sat down, Bradshaw told Chavez that he would not let her leave.
While he told Chavez she could not leave, Bradshaw had a knife or the gun “in
his hands and both of them within reach at all times.” Tr. Vol. II at 71. I
believe the facts show that Bradshaw pointed the firearm before the
confinement began and he committed the confinement without pointing the
firearm at Chavez4. Additionally, although the State described the charges as
“repetitive” in its closing argument, the State’s description of the confinement
charge only referenced possession of the gun and did not allege that Bradshaw
confined Chavez by pointing the weapon.
[31] While this event happened over the course of one evening, it also happened
over multiple hours. The first offense occurred almost immediately when
4 It appears to me that the majority focuses too much of its attention on the prosecutor’s closing argument. While the prosecutor talked about “repetitive” facts in closing argument, the prosecutor’s arguments should not be the basis for determining a substantive double jeopardy violation. Counsels’ arguments are not facts adduced at trial. Gibson v. State, 133 N.E.3d 673, 694 (Ind. 2019) (quoting Piatek v. Beale, 999 N.E.2d 68, 69 (Ind. Ct. App. 2013)).
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 17 of 18 Bradshaw pointed the gun at Chavez, and a distinct second offense occurred
when he, while still armed with a weapon told Chavez that he would not let her
leave. Thus, I believe these two offenses were not “so compressed in terms of
time, place, singleness of purpose, and continuity of action as to constitute a
single transaction” and no double jeopardy violation occurred. A.W., 229
N.E.3d at 1071 (quoting Wadle, 151 N.E.3d at 249). Accordingly, I would
affirm.
Court of Appeals of Indiana | Opinion 23A-CR-2700 | July 17, 2024 Page 18 of 18