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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA Marion County man who molested a preteen girl failed to persuade the Indiana Court of Appeals that two of his child molesting convictions violated double jeopardy protections, though the appellate court did agree to vacate a lesser conviction of criminal confinement on double jeopardy grounds.
In Edward Koziski v. State of Indiana, 20A-CR-1889, appellant-defendant Edward Koziski was convicted of seven felonies and one misdemeanor after he molested his roommate’s 12-year-old granddaughter on four occasions. Among those convictions were two counts of Level 1 felony child molesting and Level 5 felony counts of criminal confinement and kidnapping.
Those four convictions related to two of the child molesting incident. The first incident led to the Level 1 felony convictions, while the second – where Koziski forced 12-year-old D.B. back into the house and told her, “You’re not leaving” – led to the Level 5 felonies.
Koziski appealed his Level 1 and Level 5 felonies, arguing they constituted double jeopardy in violation of his constitutional rights. However, he did not raise his double jeopardy claims in the Marion Superior Court, and his counsel went so far as to tell the trial judge there were no double jeopardy concerns.
Koziski argued he was permitted to raise his double jeopardy claims for the first time on appeal as a violation of his fundamental rights, and the Indiana Court of Appeals determined the claims were properly before it. Waiver notwithstanding, the court added in a footnote that the state conceded the Level 5 felony convictions were double jeopardy, so the criminal confinement conviction should be vacated.
Turning to the merits, the appellate panel partially upheld Koziskis’ convictions.
Judge Nancy Vaidik noted the framework for addressing substantive double jeopardy claims was overhauled last year via the cases of Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256 (Ind. 2020). Wadle addressed cases where a single act violates multiple statutes with common elements, while Powell addressed a single criminal act that violates a single statute and results in multiple injuries.
Koziski challenged his Level 1 felonies under Wadle, while the state supported those convictions under Powell.
“At first blush, then, this might seem to be a Powell situation, since Koziski stands convicted of two Level 1 felonies under Indiana’s one child-molesting statute, Indiana Code section 35-42-4-3. But that view oversimplifies things, because Koziski was actually convicted under two different statutory provisions incorporated by reference into that statute,” Vaidik wrote. “Specifically, Section 35-42-4-3(a) provides that a person at least twenty-one years of age ‘who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5)’ commits Level 1 felony child molesting. … Section 35-31.5-2-222.5, in turn, defines ‘other sexual conduct’ as ‘an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.’
“These provisions define ‘multiple sets of essential elements.’ … And Koziski was convicted once under each provision … ,” Vaidik continued. “Because the convictions fall under separate statutory provisions, each defining a separate crime, the Wadle ‘multiple statutes’ test is a better fit than the Powell ‘single statute’ test.”
Applying the Wadle test to the Level 1 felonies, the appellate panel found under the first step that neither statute permits or prohibits multiple punishments for multiple acts of molestation against the same victim in a single encounter. And under the second step, the panel determined Koziski’s offenses were not included under the included-offense statute.
“Because neither of Koziski’s offenses is included in the other, his convictions do not constitute double jeopardy under Wadle, and there is no need to further examine the specific facts of the case under the third step of the test,” Vaidik wrote. “We affirm both of Koziskis’ convictions for Level 1 felony child molesting.”
But all parties agreed that under Wadle, the Level 5 felonies constituted double jeopardy. Vaidik pointed to the recent decisions in Jones v. State, 159 N.E.3d 55 (Ind. Ct. App. 2020), trans. denied., and Madden v. State, 162 N.E.3d 549 (Ind. Ct. App. 2021), both of which held that confinement is an included offense of kidnapping.
“The same is true here,” Vaidik wrote. “As the State acknowledges, Koziski forcing D.B. into the house and locking her inside was one continuous action that cannot support separate convictions for confinement and kidnapping.
“Koziski and the State agree the appropriate remedy is to vacate the confinement conviction,” the panel concluded. “We therefore remand this matter to the trial court with instructions to vacate the conviction and sentence for Level 5 felony criminal confinement.”
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