                                                 Jul 23 2014, 10:15 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JOHN ANDREW GOODRIDGE                        GREGORY F. ZOELLER
Evansville, Indiana                          Attorney General of Indiana

                                             CHANDRA K. HEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

WILLIE L. MONTGOMERY,                        )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.
                                             )         No. 82A05-1401-CR-34
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


    INTERLOCUTORY APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                 The Honorable Carl A. Heldt, Senior Judge
                   The Honorable Kelli Fink, Magistrate
                      Cause No. 82C01-1207-FD-916



                                   July 23, 2014

                            OPINION–FOR PUBLICATION

BAKER, Judge
          In this interlocutory appeal, appellant-defendant Willie Montgomery challenges

the trial court’s denial of his motion to dismiss the charge of Failure to Register as a Sex

or Violent Offender1 in Vanderburgh County. Montgomery argues that the trial court

erred in dismissing his motion because he had already been prosecuted for failing to

register as a sex offender in Pike County. More particularly, Montgomery contends that

prosecuting him for failing to register in both counties is barred under Indiana Code

section 35-34-1-4(a)(7) and violates double jeopardy principles. We find that the charge

in question is not barred under Indiana Code section 35-34-1-4(a)(7) and does not violate

double jeopardy principles. We remand to the trial court for trial.

                                           FACTS

          On November 5, 2010, Montgomery was convicted of sexual battery. As a result

of this conviction, Montgomery was required to register as a sex offender. On November

8, 2011, he registered as a sex offender with the Pike County Sheriff’s Office.

          On July 6, 2012, Indiana State Police Sergeant Detectives Marty Metzger and Tim

Keller drove to Montgomery’s registered address to ensure compliance. However, when

they arrived, Montgomery’s parents informed the officers that Montgomery had moved

out of the home.          They told the officers that Montgomery had moved in with his

girlfriend, Gabrielle Evans, who lived in Vanderburgh County.




1
    Ind. Code § 11-8-8-17(a).
                                              2
       The officers then went to Evans’s residence, where they verified that Montgomery

was living with Evans. Montgomery admitted that he had failed to register as a sex

offender in Vanderburgh County and that he had not changed his principal address in

Pike County.

       On July 18, 2012, Montgomery was charged with failure to register in Pike

County. The following day, July 19, 2012, Montgomery was charged with failure to

register in Vanderburgh County. Montgomery pleaded guilty to failing to register in Pike

County on October 3, 2012. On March 6, 2013, he filed a motion to dismiss the charge

of failing to register in Vanderburgh County, arguing that the prosecution in Vanderburgh

County was barred by a previous prosecution pursuant to Indiana Code 35-34-1-4(a)(7)

and the Fifth Amendment to the Constitution. On April 16, 2013, the trial court denied

Montgomery’s motion after holding a hearing on the matter.

       On April 19, 2013, Montgomery filed a motion to certify for interlocutory appeal

in the trial court, and the trial court granted the motion that same day.2 On January 19,

2014, Montgomery renewed his motion to dismiss and motion to certify for interlocutory

appeal in the trial court; the trial court denied the motion to dismiss and granted the

motion to certify for interlocutory appeal that same day. This Court accepted jurisdiction

over the interlocutory appeal on February 24, 2014.


2
  Montgomery’s first interlocutory appeal was dismissed by this Court because he failed to seek the
interlocutory appeal as a discretionary appeal under Appellate Rule 14(B). See Montgomery v. State, No.
82A-1305-CR-246, memo op. (Ind. Ct. App. Dec 9, 2013).


                                                  3
                             DISCUSSION AND DECISION

                                  I. Standard of Review

       We review a ruling on a motion to dismiss for an abuse of discretion. Ingram v.

State, 760 N.E.2d 615, 618 (Ind. Ct. App. 2001). An abuse of discretion occurs when the

trial court’s decision is against the logic and effect of the facts and circumstances before

it. Weis v. State, 825 N.E.2d 896, 900 (Ind. Ct. App. 2005).

       However, as Montgomery’s arguments require interpretation of the failure to

register statute, our review of this question of law is de novo. Houston v. State, 898

N.E.2d 358, 361 (Ind. Ct. App. 2008). When reviewing a matter de novo, we owe no

deference to the trial court’s legal conclusions. Kibbev v. State, 733 N.E.2d 991, 995

(Ind. Ct. App. 2000).

                                     II. Montgomery’s Claim

       Montgomery argues that the trial court erred when it denied his motion to dismiss

because a plain reading of Indiana Code section 11-8-8-11(a) in conjunction with Indiana

Code section 11-8-8-17 creates a single duty for a sex offender to register with the

appropriate law enforcement officials when moving between counties in Indiana.

Therefore, Montgomery contends he can only be guilty of one offense.

       Montgomery, as a sex or violent offender, was required to register pursuant to

Indiana Code section 11-8-8-7. When he moved to Vanderburgh County, Indiana Code

                                             4
section 11-8-8-11(a)3 required him to report to officials in Pike County and in

Vanderburgh County. That section provides:

       (a) If a sex or violent offender who is required to register under this chapter
       changes:

               (1) principal residence address; or

               (2) if section 7(a)(2) or 7(a)(3) of this chapter applies, the place
               where the sex or violent offender stays in Indiana;

       the sex or violent offender shall report in person to the local law
       enforcement authority having jurisdiction over the sex or violent offender’s
       current principal address or location and, if the offender moves to a new
       county in Indiana, to the local law enforcement authority having
       jurisdiction over the sex or violent offender’s new principal address or
       location not more than seventy-two (72) hours after the address change.

I.C. § 11-8-8-11(a).

       When Montgomery failed to register as required, he was charged under

Indiana Code section 11-8-8-17(a), which states:

       (a) A sex or violent offender who knowingly or intentionally:

               (1) fails to register when required to register under this chapter;
               (2) fails to register in every location where the sex or violent
               offender is required to register under this chapter;
               (3) makes a material misstatement or omission while registering as a
               sex or violent offender under this chapter;
               (4) fails to register in person as required under this chapter; or
               (5) does not reside at the sex or violent offender’s registered address
               or location;

       commits a Class D felony.



3
 Indiana Code section 11-8-8-11 was amended in 2013, but the statutory language under analysis in this
case was not affected.
                                                  5
Montgomery was charged under section 11-8-8-17(a) in Pike County and in Vanderburgh

County.

       As noted above, Montgomery argues that there is a single duty for a sex offender

to register with the appropriate law enforcement officials when moving and asserts that

he can be guilty of only one offense.

       However, Montgomery’s interpretation does not comport with our reading of

Indiana Code section 11-8-8-17(a). There are two duties here, one for a sex offender to

reside at his registered address in Pike County and one to register as a sex offender in

Vanderburgh County. Montgomery is guilty of two divisible offenses. Therefore, he

could fulfill or omit one duty without fulfilling or omitting the other. As such, we cannot

find that Montgomery was charged twice with the same offense for the same act. Rather,

we conclude that he was properly charged twice for two separate offenses.

       Montgomery also argues that the prosecution in Vanderburgh County was barred

by a previous prosecution pursuant to Indiana Code section 35-34-1-4(a)(7). Indiana

Code section 35-34-1-4(a)(7) allows the trial court to dismiss an indictment or

information if “the prosecution is barred by reason of a previous prosecution.” However,

as noted above, Montgomery was properly prosecuted for two separate offenses.

Therefore, prosecution in Vanderburgh County was not barred.

       Finally, Montgomery argues that a subsequent prosecution in Vanderburgh County

would violate double jeopardy principles.



                                            6
       Article I, section 14 of the Indiana Constitution provides that “[n]o person shall be

put in jeopardy twice for the same offense.” Two or more offenses are the same offense

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. Richardson, 717 N.E.2d at 49. The

first aspect of this analysis is the statutory elements test, which identifies and compares

the essential statutory elements of the challenged crimes to determine if each offense

contains at least one element that is separate and distinct from the other. Id. at 50.

       Under the actual evidence test, the defendant must show 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. Id. at 53. However, Indiana’s Double Jeopardy Clause “is not

violated when the evidentiary facts establishing the essential elements of one offense also

establish only one or even several, but not all, of the essential elements of a second

offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

       First, we conclude that Montgomery’s charge in Vanderburgh County does not

violate double jeopardy principles under the statutory elements test.      Montgomery was

charged with two separate violations of Indiana Code section 11-8-8-17(a). In order to

prove the violation in Pike County, the State had to show that Montgomery 1) was a

registered sex or violent offender, 2) who knowingly or intentionally, 3) did not reside at

the sex or violent offender’s registered address or location.        I.C. § 11-8-8-17(a)(5);

                                              7
Appellant’s App. p. 33.       On the other hand, in order to prove the violation in

Vanderburgh County, the State was required to prove that Montgomery 1) was a

registered sex or violent offender, 2) who knowingly or intentionally, 3) failed to register

when required.      I.C. § 11-8-8-17(a)(1); Appellant’s App. p. 16.           Under these

circumstances, we cannot say Montgomery’s charge in Vanderburgh County violated the

statutory elements test.

       As regards the actual evidence test, as noted above, Montgomery was charged

with two counts of failing to register under Indiana Code section 11-8-8-17(a). However,

different evidence would be required to prove each charge because the charges were the

result of two divisible omissions. More particularly, in Pike County the prosecution

would have been required to prove that Montgomery did not live at his registered

address, and in Vanderburgh County the prosecution would be required to prove that

Montgomery did not register in Vanderburgh County. In light of these circumstances, we

cannot say that there was a double jeopardy violation.

       We remand this case to the trial court for trial.

BARNES, J., and CRONE, J., concur.




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