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A man’s convictions for different forcible sexual acts against a woman following a concert did not constitute double jeopardy, the Court of Appeals of Indiana ruled Friday in affirming a lower court’s decision.
According to court records, in February 2016, R.M. went to a concert with a friend in Indianapolis. Afterward, they went to a nearby bar, where the two got separated.
R.M. encountered Thomas Stone, who told her that he knew where her friend was “and that it was just down the street and he offered to take [her] there because that’s where he was headed anyway.”
Stone then forced R.M. to perform several nonconsensual sexual acts.
The state charged Stone with eight counts, including five counts of Level 3 felony rape, Level 5 felony kidnapping, Level 5 felony criminal confinement and Level 6 felony intimidation.
The Marion Superior Court acquitted Stone on two of the five felony rape counts and the kidnapping count but found him guilty on the remaining counts.
At the sentencing hearing, Stone’s counsel argued that only one of the three rape convictions could stand on double jeopardy grounds because “[t]hey’re all from the same series of acts.”
The prosecutor disagreed, arguing that “every time a woman is penetrated in a different orifice, that is a separate and distinct harm.”
The trial court agreed and sentenced Stone to an aggregate 26-year sentence.
In his appeal, Stone argued that “[t]he separation of the single crime into multiple convictions violates [his] right against double jeopardy[.]”
The Court of Appeals disagreed and affirmed Stone’s convictions.
Judge Terry Crone wrote the opinion for the appellate court.
According to Crone, although Stone’s convictions are based on the same subsection of the rape statute, they are based on separate criminal acts: forcible sexual intercourse and forcible other sexual conduct. That means the test in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), applies.
Then, applying Wadle, the COA held that “sexual intercourse and other sexual conduct are mutually exclusive material elements of rape, and the ‘attempt’ and ‘less serious harm’ provisions of the included-offense statute are inapplicable. Because neither of Stone’s rape convictions is included in the other, they do not constitute double jeopardy under Wadle.”
Judges Rudolph Pyle and Elizabeth Tavitas concurred.
The case is Thomas Stone v. State of Indiana, 23A-CR-625.
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