MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Apr 06 2016, 8:20 am
this Memorandum Decision shall not be
                                                                           CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Randy M. Fisher                                          Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Roger E. Carlson,                                        April 6, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1509-CR-1400
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-1411-FA-48



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1509-CR-1400 | April 6, 2016           Page 1 of 7
[1]   Roger Carlson appeals following his convictions for Rape,1 a class A felony,

      two counts of Criminal Deviate Conduct,2 a class A felony, and Criminal

      Confinement,3 a class A felony. Carlson argues that the rape and criminal

      deviate conduct convictions violate the prohibition against double jeopardy.

      The trial court ordered the sentences for rape and criminal deviate conduct to

      be served consecutively, which Carlson contends was erroneous. Finding that

      the convictions do not place Carlson in double jeopardy and finding no

      sentencing error, we affirm.


                                                     Facts
[2]   On June 24, 1999, around 11:00 p.m., V.C., who was in her twenties, went to a

      bar in Fort Wayne. While at the bar, V.C. met and spoke with a stranger who

      identified himself only as “Mike.” It was later determined that “Mike” was

      Carlson. Carlson and V.C. talked, danced, and had drinks together throughout

      the evening.


[3]   Sometime after midnight, V.C. left the bar to walk home. Carlson approached

      her in his truck and offered her a ride. She declined. He then forced V.C. into

      his truck at gunpoint and drove to a cornfield in northern Allen County. Once

      they arrived at the cornfield, Carlson forced V.C. to remove her clothes and




      1
          Ind. Code § 35-42-4-1.
      2
          I.C. § 35-42-4-2.
      3
          I.C. § 35-42-3-3.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1509-CR-1400 | April 6, 2016   Page 2 of 7
      wrapped her bra around her neck. He forced V.C. to perform oral sex on him

      and choked her with her bra if she did something he did not like. Carlson

      repeatedly forcibly penetrated V.C.’s vagina and anus with his penis. V.C. was

      afraid that Carlson would kill or seriously injure her.


[4]   After these assaults continued for some time, Carlson then forced V.C. back

      into his truck and drove to another location near a railroad track. Once there,

      Carlson made V.C. pull down her pants and he raped her again. When she

      screamed, Carlson struck her in her vocal cords. Carlson held a large rock up

      over V.C.’s head and she prayed that she would see her children again. He

      said, “You’re lucky I’m not going to kill you,” and then he let her go, left her

      there, and drove away. Tr. p. 38. V.C. eventually made her way to a store and

      called her mother, who took her to a hospital. V.C. sustained pain in her head,

      neck, and leg, bruising, vaginal tears, widespread redness to her labial and anal

      areas, and blunt force trauma to her sexual organs.


[5]   A sexual assault examination took place at the Sexual Assault Treatment

      Center, and evidence, including DNA samples and vaginal, cervical, anal, and

      oral swabs, was collected with a sexual assault kit. Law enforcement was

      unable to identify a suspect in 1999 and the case was closed, but the kit and the

      evidence were preserved. Around 2013, the Fort Wayne Police Department

      began reevaluating cold cases involving sexual assaults. The evidence from

      V.C.’s assault was submitted to a national database of DNA profiles. The

      evidence indicated that Carlson was V.C.’s attacker.



      Court of Appeals of Indiana | Memorandum Decision 02A05-1509-CR-1400 | April 6, 2016   Page 3 of 7
[6]   On November 19, 2014, the State charged Carlson with class A felony rape,

      two counts of class A felony criminal deviate conduct, and class A felony

      criminal confinement. A jury trial was held on July 29 and July 30, 2015, and

      the jury found Carlson guilty as charged. Following an August 27, 2015,

      sentencing hearing, the trial court sentenced Carlson to thirty years

      imprisonment for the rape and criminal deviate conduct convictions, to be

      served consecutively, and to ten years for the criminal confinement conviction,

      to be served concurrently with the other sentences, for an aggregate sentence of

      ninety years imprisonment. Carlson now appeals.


                                   Discussion and Decision
                                        I. Double Jeopardy
[7]   First, Carlson argues that his convictions for rape and criminal deviate conduct

      violate the prohibition against double jeopardy. A double jeopardy claim

      presents a pure question of law to which we apply a de novo standard of

      review. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). Under Article 1,

      Section 14 of the Indiana Constitution, two offenses are the same offense in

      violation of this double jeopardy provision where, with respect to either the

      statutory elements of the challenged offenses or the actual evidence used to

      convict, the essential elements of one of the offenses also establishes the

      essential elements of the other challenged offense. Spivey v. State, 761 N.E.2d

      831, 832 (Ind. 2002).




      Court of Appeals of Indiana | Memorandum Decision 02A05-1509-CR-1400 | April 6, 2016   Page 4 of 7
[8]    Carlson concedes that the statutory elements of rape and criminal deviate

       conduct are not the same, arguing solely that the same actual evidence was used

       to support both convictions. In considering this argument, an appellate court

       will find a double jeopardy violation only where there is a reasonable possibility

       that the evidentiary facts used by the factfinder to establish the essential

       elements of one of the offenses may also have been used to establish all the

       essential elements of the other challenged offense or offenses. Hines v. State, 30

       N.E.3d 1216, 1222 (Ind. 2015). Our Supreme Court has emphasized that as

       long as “each conviction require[s] proof of at least one unique evidentiary

       fact,” there is no violation of the actual evidence test. Bald v. State, 766 N.E.2d

       1170, 1172 (Ind. 2002).


[9]    The evidence supporting Carlson’s rape conviction included the fact that he had

       vaginally penetrated V.C. The evidence supporting the criminal deviate

       conduct convictions, on the other hand, included the respective facts that

       Carlson had orally and anally penetrated V.C. In other words, each of these

       convictions requires proof of a unique evidentiary fact. We find no violation of

       double jeopardy principles and decline to overturn the convictions on this basis.


                                   II. Consecutive Sentences
[10]   Next, Carlson argues that the consecutive sentences for his rape and criminal

       deviate conduct convictions was erroneous. He frames his argument by citing

       to the continuing crime doctrine. This doctrine, however, is “limited to

       situations where a defendant has been charged multiple times with the same


       Court of Appeals of Indiana | Memorandum Decision 02A05-1509-CR-1400 | April 6, 2016   Page 5 of 7
       offense.” Hines, 30 N.E.3d at 1219. Here, as noted above, Carlson was charged

       and convicted of three distinct offenses, each requiring proof of unique and

       distinct facts. Therefore, the continuing crime doctrine does not apply.


[11]   We suspect that Carlson intended to argue that his crimes constituted a single

       episode of criminal conduct, rendering consecutive sentences erroneous. See

       Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (holding that to

       determine whether crimes are a single episode of criminal conduct, focus is on

       the timing of the offenses and the simultaneous and contemporaneous nature of

       the crimes). Even if Carlson had made this argument, however, he would not

       have succeeded. Carlson forced V.C. into his truck at gunpoint and drove her

       to a cornfield, where he forced her to remove all of her clothes, choked her with

       her bra, and assaulted her orally, vaginally, and anally. Just when she thought

       the nightmare was over, he forced her back into the truck and drove her to a

       second secluded location. The second time, he forced her to take off her pants

       and committed a new, second round of sexual assaults against her, this time

       striking her in the vocal cords. In other words, he committed multiple sexual

       assaults on his victim in two places, at two times, in different ways, separated

       by a subsequent confinement and after transporting her by force a second time.

       We do not find that these actions constitute a single episode of criminal

       conduct; consequently, we find no error in the trial court’s decision to order the

       sentences be served consecutively.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1509-CR-1400 | April 6, 2016   Page 6 of 7
[12]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1509-CR-1400 | April 6, 2016   Page 7 of 7
