FILED
Sep 04 2026, 8:56 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Ivy Sisson,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
September 4, 2026
Court of Appeals Case No.
25A-CR-3174
Appeal from the Marion Superior Court
The Honorable Angela Dow Davis, Judge
Trial Court Cause No.
49D27-2109-F3-29143
Opinion by Judge DeBoer
Judge Mathias concurs in part and concurs in result in part with a
separate opinion.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 1 of 55
Judge Kenworthy concurs.
DeBoer, Judge.
Case Summary
[1] After abducting his estranged wife from her employer’s parking lot and
subjecting her to a violent ordeal in which he repeatedly beat and threatened to
kill her, Ivy Sisson was charged a litany of offenses. They included kidnapping
as Level 3 and Level 5 felonies, criminal confinement as Level 3 and Level 5
felonies, domestic battery as a Level 5 felony, and two counts of intimidation as
Level 5 felonies. A jury found Sisson guilty as charged, the trial court convicted
him of all counts, and Sisson received an aggregate sentence of thirty-one years.
Sisson challenges his convictions on appeal and raises two issues. First, he
contends the trial court erroneously admitted evidence seized after a warrantless
search of his girlfriend’s condo. Second, he argues that all his convictions
except for Level 3 felony kidnapping and Level 5 felony domestic battery
violate substantive double jeopardy and must be vacated.
[2] We first hold that the warrantless search of the condo violated neither the
Fourth Amendment to the U.S. Constitution nor Article 1, Section 11 of the
Indiana Constitution, as Sisson’s girlfriend gave his arresting officers voluntary
consent to search her home and garage. Thus, evidence seized from her
residence was properly admitted at trial. Second, we conclude that Sisson’s
multiple convictions put him in substantive double jeopardy and thus affirm
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 2 of 55
only his convictions for Level 3 felony kidnapping and Level 5 domestic
battery. We remand to the trial court with instructions to vacate Sisson’s other
convictions and their corresponding sentences.
Facts and Procedural History
[3] Sisson and Kristina Hannah 1 met and started dating sometime around 1999.
They had a son together shortly after they started dating but separated
sometime after his birth. Sisson and Hannah rekindled their relationship in
2012 and were married in 2015. In 2021, they separated again and discussed
getting a divorce.
[4] At the time of their second separation, Hannah worked in the IU Health lab at
the Methodist Medical Plaza South in Indianapolis. On September 16, 2021,
Hannah was scheduled to arrive at work between 5:00 and 5:30 a.m. At
around 4:45 that morning, a security guard monitoring the plaza’s parking lot
saw a middle-aged or older black man walking from behind a COVID-19
testing tent. Assuming the man was homeless, the security guard told him that
he needed to leave. Apparently without objection, the man walked out of the
parking lot toward the main road. Shortly thereafter, the guard noticed an
unfamiliar white car parked in the lot. When he peered through its windows,
he saw rope and a roll of “thicker-type tape” inside. Transcript Vol. 2 at 224.
1
When she and Sisson were married, Hannah’s last name was the same as Sisson’s. She later changed it to
Hannah, which is how we refer to her throughout this opinion.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 3 of 55
Thinking the car might belong to someone working construction at the medical
center, the guard left it alone and drove to a spot at the northwest corner of the
building where he could monitor staff arriving for their morning shifts.
[5] A few minutes later, out of the corner of his eye, the security guard saw the
white car “spe[e]d away” to the south side of the parking lot, out of the guard’s
view. Id. at 217. Fifteen to twenty minutes after that, the car drove back to the
north side of the parking lot with its headlights off before doing a U-turn and
exiting the lot. After observing that odd behavior, the security guard called the
police, and an IMPD officer was dispatched to the plaza at around 5:40 a.m.
The officer spoke with the guard and drove around the building, but he didn’t
see anything notable and left the scene.
[6] Meanwhile, Hannah had arrived for the start of her shift at around 5:30 a.m.
She parked her SUV near the COVID-19 tent and started walking toward the
building’s entrance. Moments later, without warning, Sisson approached her
from behind and hit her on the back of the head with a handgun. The pair
briefly struggled as Sisson tried to force Hannah back into her vehicle, but he
couldn’t gain control of her keys. Sisson then grabbed Hannah by the arm,
pointed the gun at her back, and told her to start walking. She tried to break
free from his grip, but he held onto her “[v]ery forceful[ly].” Tr. Vol. 3 at 20.
He led Hannah at gunpoint across the plaza’s parking lot, through a wooded
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 4 of 55
area, and into the parking lot of a hardware store. There, Sisson had parked his
white Nissan Sentra. 2
[7] Sisson initially tried to put Hannah into the trunk of his car. But after Hannah
begged him not to, he placed her in the back seat, took her cell phone and book
bag from her, and started driving. He pulled onto I-65 North and told Hannah
he was driving to a remote location where he would “bury [her] in the
cornfields.” Id. at 22. Later during the drive, he explained that he planned to
kill her so he could collect on an insurance policy.
[8] At some point during the drive, Sisson demanded that Hannah tell him the
passcode to unlock her phone. When she refused, he used the gun to hit her on
her knees, arms, hand, and head. After landing one of these blows, Sisson
dropped the gun and had to pull over at a rest stop to pick it back up. When the
car stopped, Hannah tried to escape, but Sisson had enabled the child locks so
she could not open the door. Sisson retrieved the gun, got back on the
interstate, and continued to beat Hannah until she finally gave him her
passcode. Sisson then used Hannah’s phone to text her coworkers, who had
noticed her absence from work and were trying to reach her.
[9] After driving for about an hour, Sisson exited the interstate and “went out
through the cornfields.” Id. at 25. He stopped, made Hannah get out of the
2
The Nissan was registered to Hannah, but Sisson had it in his possession before, during, and after Hannah’s
abduction.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 5 of 55
car, retrieved a shovel from the trunk, and led Hannah at gunpoint down into a
ditch. He forced her to her knees, held the gun to the back of her head, told her
he was going to kill her, and started reciting the Lord’s Prayer. As he did,
Hannah begged for her life. Sisson eventually agreed not to kill Hannah, telling
her that “he still loved [her]” and saying “something about [Hannah’s] daughter
needing [her] and how much he loved her.” Id. at 26. He helped Hannah out
of the ditch, put her back in the car, and drove her to IU Health West Hospital
in Avon.
[10] Sisson dropped Hannah outside the hospital’s entrance and drove away, which
was captured by the hospital’s security cameras. Though Sisson is not visible in
the hospital security footage, he was captured on Hannah’s home security
system three days later driving the same white Nissan that dropped her off at
the hospital. Hannah was treated for two lacerations on the back of her scalp
and her left forehead, and she had bruises on her face, shoulder, wrist, fingers,
knees, and thigh, as well as a third laceration on her wrist. Many of her fingers
were swollen, and the ring finger on her left hand suffered a minor fracture.
While in the hospital, Hannah told a physician’s assistant “that she had been
physically assaulted . . . [b]y her husband.” Id. at 58.
[11] Hannah’s coworkers and family reported her missing shortly after she failed to
show up for work, and police were already investigating her disappearance
when she arrived at the hospital. After learning that Hannah had been found,
an IMPD detective went to the hospital to speak with her. Officers put together
an application for a warrant to arrest Sisson based on the information Hannah
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 6 of 55
provided. An arrest warrant was issued on September 21, and lead Detective
Anthony Weaver asked the U.S. Marshals Service for help locating Sisson.
[12] A day later, law enforcement tracked Sisson to a condo on Deerwood Court in
Indianapolis where his girlfriend, Michelle Dunklin, lived. Sisson was arrested
at Dunklin’s residence on September 22, and officers saw his Nissan while
performing what they described as “a protective sweep of the garage area which
had separate access.” Exhibits Vol. 1 at 14. Later that day, officers obtained
and executed warrants to search the residence, garage, and the Nissan. In the
garage, officers found and seized a shovel, a loaded handgun, a holster, a box of
ammunition, zip ties, and various tools. DNA analysis later revealed a mixture
of two DNA profiles on the gun’s slide grip: Hannah’s and that of an unrelated
male. The male DNA profile was inconclusive and could not be compared to
Sisson’s. In Sisson’s Nissan (which was also seized), officers found apparent
blood stains on the back seat and rear passenger-side grab handle. Analysis
later confirmed those stains were from Hannah’s blood.
[13] On September 20, 2021, the State charged Sisson with seven counts:
• Count I – Kidnapping, as a Level 3 felony; 3
• Count II – Criminal Confinement, as a Level 3 felony; 4
3
Ind. Code § 35-42-3-2(a), (b)(3)(A) (2019).
4
Ind. Code § 35-42-3-3(a), (b)(3)(A) (2019).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 7 of 55
• Count III – Kidnapping, as a Level 5 felony; 5
• Count IV – Criminal Confinement, as a Level 5 felony; 6
• Count V – Domestic Battery by Means of a Deadly Weapon, a Level 5
felony; 7
• Count VI – Intimidation, as a Level 5 felony; 8 and
• Count VII – Intimidation, as a Level 5 felony. 9
Sisson was represented by counsel from the date of his initial hearing on
September 27, 2021 to January 2023. At a hearing on January 26, 2023, Sisson
expressed his desire to proceed pro se. The trial court permitted Sisson’s
attorney to withdraw so Sisson could represent himself.
[14] A few days later, on January 31, Sisson filed a pro se “Motion to Suppress
Evidence” and a memorandum of law supporting that motion. Appellant’s
Appendix Vol. 2 at 220. He sought to suppress evidence obtained from
Dunklin’s condo, garage, and his Nissan on the grounds that the “protective
sweep” conducted by the arresting officers violated the Fourth Amendment to
the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. Id.
at 225. In the memorandum, he asserted the following “facts”:
5
I.C. § 35-42-3-2(a), (b)(1)(B).
6
I.C. § 35-42-3-3(a), (b)(1)(C).
7
Ind. Code § 35-42-2-1.3(a)(1), (c)(2) (2021).
8
Ind. Code § 35-45-2-1(a)(1), (b)(2)(A) (2019) (amended 2022).
9
I.C. § 35-45-2-1(a)(4), (b)(2)(A).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 8 of 55
On September 22, 2021, [officers] arrested [Sisson], outside
[Dunklin’s condo], on a body attachment/arrest warrant.
Officers then opened the screen door and exterior door of said
residence, without authority, pulled a female from the residence
to the outside, asked the female [if] there [was] anyone else
present, then took the female and [Sisson] back into the
residence, and proceeded to search the residence.
Id. at 223-24. Sisson argued that because he was not arrested inside the condo,
the officers had no valid justification to conduct a “protective sweep” after
taking him inside. Id. at 225. He also noted that the “arresting officers will
state that the homeowner gave them permission to search the residence.” Id. at
226. However, according to Sisson, Dunklin did not voluntarily consent
because she had been “yank[ed] . . . from her doorway outside, and then [was]
co[]erc[ed] into giving [officers] consent to search by placing her under
arrest/detainment in her own home.” Id. at 228.
[15] The court held a trifurcated hearing on the motion to suppress on February 8,
March 21, and April 18, 2023. 10 On February 8, Sisson called Dunklin to
testify. According to Dunklin, she became alarmed that day when she saw law
enforcement standing outside her front door “in full armor . . . with their guns
drawn[ and] their protective wear on.” Supplemental Tr. at 8. She opened the
door because she was afraid the police were about to knock it down. Dunklin
described that Sisson stood behind her as she spoke with the officers, who told
10
The State did not file a written response to the motion to suppress.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 9 of 55
her “that they were looking for Mr. Sisson[.]” Id. She said, “[H]e’s right
here[,]” and the officers “pulled” her and Sisson “out of the house.” Id. She
then claimed that after asking her a few questions about Sisson, they took
Sisson back inside the residence but kept speaking with her outside.
[16] Dunklin further testified that because it was raining, and since she wanted to get
back to her work-from-home call center job, she asked the officers if she could
go back inside. Dunklin explained what happened next as follows:
[T]hey allowed me to come back in, and one of the police officers
. . . came up with me while I continued to do my job, and they
had [Sisson] sit on the couch. . . . [The officers] told me that . . .
they were looking for . . . a few items. Then they read me my
rights. After reading me my rights, they wanted to know . . . if
they could do a search because they were just looking for a few
things. At this point, unfortunately, I should know better, but I
don’t know anything about the law. Never been in trouble. So I
am like, okay, well, whatever you’ve got to do because at this
point, I just want you out of my house. . . . I did sign a consent
for [a] search[.][ 11]
Id. at 8-9. Dunklin claimed she was “under distress” when she signed the
consent form because she had “never been in that type of situation before” and
11
Neither Sisson nor the State offered a copy of Dunklin’s written consent into evidence at the suppression
hearing, and we do not have a copy of it in the record on appeal.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 10 of 55
“was also working and underneath pressure.” Id. at 9. She also said that
though officers informed her of her “rights[,]” 12 she didn’t understand them. Id.
[17] After brief cross-examination by the State, the trial judge asked Dunklin if
Sisson was living with her when he was arrested. Dunklin said no, and the
court asked if Sisson “[h]ad . . . stayed . . . overnight at [her] residence prior to
the police showing up[.]” Id. at 10. The following exchange then occurred:
[DUNKLIN]: Well, he had stayed over, you know, like he was
having problems, didn’t have anywhere to stay. So I mean, he
stayed over maybe like a night or two, but it was not like a
consistent stay where I could say that he was in my dwelling
place and – and you know, and was living there.
THE COURT: But as far as the night before leading up to this,
he had stayed overnight at your location, and that is why he was
there at that time, or he had simply stopped by?
[DUNKLIN]: Oh, he had simply stopped by.
THE COURT: Do you remember the last time he had stayed
overnight at your residence?
[DUNKLIN]: That, I am not sure.
Id. at 10-11.
12
Neither Sisson nor the State presented evidence of what specific rights Dunklin was informed of before the
officers asked for her consent.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 11 of 55 [18] On re-direct, Sisson asked, “[T]he night before . . . this incident happened, had I
spent the night over at your house?” Id. at 11. Dunklin answered, “Yeah, I
guess so.” Id. The State pressed Dunklin to clarify her testimony on re-cross.
She apologized to the judge, explained that she wanted “to take back what [she]
said[,]” and reiterated that Sisson “had spent the night [with her] the night
before” his arrest. Id. at 12. No other witnesses or evidence was presented on
February 8.
[19] On March 21, the State called two witnesses. First, Detective Weaver
described that when he arrived at Dunklin’s condo on September 22, 2021, a
task force had already arrived on scene to arrest Sisson inside. He saw
members of that task force knock on Dunklin’s door, after which “[t]hey went
inside . . . .” Tr. Vol. 2 at 8. Weaver “came in moments later, after [Sisson]
was already secured, sitting on a couch in the front room.” Id. According to
Weaver, the officers asked Dunklin for permission to sweep the entire property,
and she consented. At some later point, Weaver passed along certain
“information” to Detective Leo George, who “was running . . . the operation”
but was not at Dunklin’s home. Id. at 9. George put together applications for
warrants to search Dunklin’s home and Sisson’s Nissan, and the officers on the
scene waited for those warrants to be issued by a judge. 13 Weaver was not
13
As noted below, initially, George only applied for a warrant to search Dunklin’s home and garage.
Officers seized Sisson’s Nissan while executing that first warrant, and only then did George apply for another
warrant to search the vehicle. Thus, Weaver’s testimony appears to be inaccurate insofar as he suggested that
George applied for both warrants at the same time.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 12 of 55
present when the warrants were executed. On cross-examination, Weaver
reiterated that he did not see Sisson’s arrest, and he entered Dunklin’s home
only after Sisson was already “inside sitting down on th[e] couch.” Id. at 11.
[20] Second, the State called Detective George. During his brief testimony, George
confirmed that he applied for warrants to search Dunklin’s home and Sisson’s
car based on information provided by officers who were at the scene of Sisson’s
arrest. The State then offered copies of the search warrant applications into
evidence, and the trial court admitted them over Sisson’s objection. Both
warrant applications described what Hannah told officers about the ordeal she
suffered on September 16, 2021, and noted that a warrant had been issued for
Sisson’s arrest. The application for a warrant to search Dunklin’s residence and
garage—which George submitted at 1:42 p.m.—described Sisson’s arrest and
the subsequent “protective sweep” as follows:
On September 22, 2021, at approximately 12:00 PM, [officers]
tracked Ivy Sisson to an address located at . . . Deerwood Court,
Indianapolis, Indiana where he was taken into custody for his
warrant. Also at the residence was Ms. Michelle Dun[klin], who
identified herself as the lease holder. As part of securing the
residence for officer safety, officers asked Ms. Dun[klin]
permission to do a protective sweep of the garage area which had
separate access. Ms. Dun[klin] gave them permission. While
doing so, . . . officers observed . . . there to be a white, 2010
Nissan Sentra . . . located in the garage. The residence, garage[,]
and Mr. Ivy Sisson have been secured until such time a search
warrant could be prepared.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 13 of 55
Ex. Vol. 1 at 14. A judge issued a warrant to search Dunklin’s residence and
garage at 1:59 p.m. Then, at 4:22 p.m., George applied for a warrant to search
the Nissan, which officers had seized from Dunklin’s garage. That warrant was
issued at 4:34 p.m.
[21] After the search warrant applications were entered into evidence, the court
continued the rest of the suppression hearing to April 18. On that date, Sisson
called Detective Michael Hewitt, who was present for Sisson’s arrest but
couldn’t recall if he was “the one who put handcuffs on [Sisson] or not.” Tr.
Vol. 2 at 38. He also didn’t remember whether Sisson was inside or outside
Dunklin’s residence when he was arrested, though he said, “If my memory
serves me correctly, . . . I believe [Sisson] stepped outside, I think, I think.” Id.
When Sisson asked if it was “customary . . . if you are serving an arrest
warrant, to take a defendant or arrestee back into a residence[,]” Hewitt said,
“[Y]ou were staying at that residence and the lady invited us back in, if I recall
that correctly.” Id. at 39. Hewitt clarified on cross-examination that Dunklin
gave him permission to take Sisson back into the house because it was raining.
Hewitt was not involved in conducting the protective sweep, and he provided
no testimony about the search of Dunklin’s residence and garage.
[22] As his final witness, Sisson re-called Dunklin. She testified about Sisson’s
arrest and the consent-search of her home consistently with the account she
provided on February 8. On cross-examination, Dunklin again explained that
law enforcement “read [her her] rights and asked for [her] consent to search[,]”
but she claimed she felt coerced “[b]ecause [she] was in the middle of [her]
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 14 of 55
workday.” Id. at 50-51. She also said she felt the officers pressured her
“because they were police and they were asking questions[.]” Id. at 52. After
Dunklin’s testimony, the State and Sisson indicated they had no additional
evidence on the suppression issue.
[23] From the bench, the court explained the following to Sisson:
. . . [T]estimony from Ms. Dunklin indicated that you stayed
there from time to time. Her first portion of her testimony, she
said that you had not spent the night there beforehand. But then
on redirect she said, I guess so – saying that you had spent the
night there beforehand, which could be a shaky foundation for
saying that you were an overnight guest to begin with. But even
granting you that, . . . if we’re moving on and saying that you do
have standing to assert your challenge here, which for the sake of
argument, I have granted here, I am still not seeing the
misconduct by police that would warrant the suppression in this
case.
. . . [T]hey asked the homeowner, Ms. Dunklin, can we search
this place, and then subsequently got a search warrant signed by
a judicial officer to seize certain items of evidence. That’s what
I’m seeing.
Id. at 63. After the hearing, the court issued a minute order denying the motion
to suppress.
[24] On November 8, 2023, the trial court released Sisson from pretrial detention
and put him on a GPS monitor. On December 1, the court issued a warrant for
Sisson’s arrest after he removed the monitor and fled the state. Sisson was not
located and re-arrested until April 5, 2025. Because Sisson absconded and due
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 15 of 55
to several continuances throughout the pendency of the case, Sisson’s two-day
jury trial did not commence until October 28, 2025. A few months before trial,
Sisson changed his mind about proceeding pro se, and a public defender was
appointed to represent him.
[25] At trial, numerous witnesses testified to the facts of Sisson’s crimes described
above, including Hannah, her supervisor at the health lab, a coworker, the
security guard, the physician’s assistant who treated Hannah, Detective
Weaver, and other law enforcement representatives who participated in the
investigation. Among other exhibits, the State offered photographs taken
during the search of Dunklin’s home and garage; the firearm, magazine,
holster, and shovel found in the garage; photographs of the interior and exterior
of the Nissan; and DNA swabs and other samples from the car that were
submitted to the crime lab for testing. Sisson asserted a continuing objection to
all this evidence based on his “pretrial arguments on [the] issue of the search”
which he “maintain[ed] was not constitutional.” Tr. Vol. 3 at 87. The court
admitted the evidence over Sisson’s objections. 14
[26] Ultimately, the jury found Sisson guilty as charged. With the verdict forms, the
jury sent the court a handwritten note informing it of the following:
The jury has come to a conclusion that charges 6 and 7 are very
similar. We feel as though [b]oth charges should have been
14
We outline other relevant evidence presented at trial in our discussion.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 16 of 55
rolled into one charge. We the jury ask to keep this in mind
during sentencing.
Appellant’s App. Vol. 5 at 72. When the jury was released, the trial judge
showed that note to the attorneys and said that Counts VI and VII (the
intimidation charges) were “[p]robably going to merge anyway, so it’s moot.”
Tr. Vol. 3 at 213.
[27] At the sentencing hearing, the State asked the court to impose an aggregate
sentence of twenty-two years, made up of: (1) a fourteen-year sentence on the
Level 3 felony kidnapping charge; (2) a consecutive four-year sentence on the
Level 5 felony domestic battery charge; (3) a consecutive four-year sentence on
one of the Level 5 intimidation charges; and (4) concurrent sentences on each of
the remaining counts. The State argued the sentences for the Level 3 felony
kidnapping, the Level 5 felony domestic battery, and one of the Level 5 felony
intimidation charges should be consecutive because “those are the crimes that
are easily separated from each other.” Id. at 226. However, according to the
State, the remaining counts were “a bit more intertwined[.]” Id. Sisson’s
counsel “ask[ed] the [c]ourt to run all of the[] charges together concurrently”
and argued,
I see this as one prolonged act that begins with the attack and
kidnapping, the drive, which is the confinement, with the
domestic battery as part of that kidnapping, the intimidation as
part of that kidnapping, in an effort to make her . . . comply with
what he wanted to do. I believe that all of these actions are part
of one picture, and that these charges should all run together.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 17 of 55
Id. at 226-27.
[28] After considering the parties’ arguments, the trial court entered judgments of
conviction on all seven counts and imposed an aggregate sentence of thirty-one
years in the Department of Correction as follows:
Count Offense Sentence
I Level 3 felony kidnapping 15 years
II Level 3 felony criminal confinement 10 years – consecutive to
Count I
III Level 5 felony kidnapping 6 years – concurrent with
Count II
IV Level 5 felony criminal confinement 6 years – concurrent with
Count II
V Level 5 felony domestic battery 6 years – consecutive to
Count II
VI Level 5 felony intimidation 6 years – concurrent with
Count V
VII Level 5 felony intimidation 6 years – concurrent with
Count V
[29] Sisson now appeals.
Discussion and Decision
1. Admission of Evidence
[30] Sisson first argues that “[t]he trial court erroneously admitted evidence
unlawfully recovered from Dunklin’s home.” Appellant’s Brief at 14. We
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 18 of 55
review a trial court’s decision to admit evidence at trial following the denial of a
pre-trial motion to suppress for an abuse of discretion and will “reverse only if a
ruling is ‘clearly against the logic and effect of the facts and circumstances and
the error affects a party’s substantial rights.’” Carpenter v. State, 18 N.E.3d 998,
1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).
When “the evidence is conflicting,” we “consider only that evidence which
tends to support the trial court’s ruling” and will “uphold the trial court if the
ruling is supported by substantial evidence of probative value.” Peterson v. State,
674 N.E.2d 528, 535 (Ind. 1996), reh’g denied, cert. denied. However, “the
ultimate ‘ruling on the constitutionality of a search’ is a legal conclusion that we
review de novo[.]” McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014) (quoting
Garcia-Torres v. State, 949 N.E.2d 1229, 1232 (Ind. 2011)).
[31] According to Sisson, the “protective sweep” of Dunklin’s home was unlawful
under both the federal and state constitutions, and thus any evidence seized
“pursuant to the subsequent search warrants was inadmissible fruit of the
poisonous tree.” Appellant’s Br. at 22. Under the Fourth Amendment to the
U.S. Constitution (which Article 1, Section 11 of the Indiana Constitution
mirrors), “[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated[.]”
U.S. Const. amend IV; see also Ind. Const. art. 1, § 11. Both provisions “protect
citizens from unreasonable searches and seizures.” Ramos-Osario v. State, 280
N.E.3d 784, 789 (Ind. 2026).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 19 of 55 [32] The privacy rights protected by Article 1, Section 11 and the Fourth
Amendment are personal, and a defendant cannot vicariously challenge the
constitutionality of a search under either. Peterson, 674 N.E.2d at 532, 534. To
challenge a search under the Fourth Amendment, the defendant has the burden
to show he had “a legitimate expectation of privacy in that which [was]
searched.” Barker v. State, 96 N.E.3d 638, 647 (Ind. Ct. App. 2018) (quoting
Peterson, 674 N.E.2d at 532), trans. denied. Similarly, “Indiana law has . . .
imposed a requirement of standing to challenge a search or seizure” under the
state constitution. Peterson, 674 N.E.2d at 534. Put simply, “a defendant
cannot successfully object to a search of the premises of another if such search
does not unlawfully invade his own privacy.” 15 Id.
[33] Here, the trial court observed that Sisson’s claim to have a legitimate privacy
interest in Dunklin’s condo lies on “a shaky foundation . . . .” Tr. Vol. 2 at 63.
But because the State does not contest Sisson’s standing, we assume without
deciding that he had a legitimate expectation of privacy in the premises
15
Though a defendant must have had a reasonable expectation of privacy to challenge a search under both
the state and federal constitutions, “the U.S. Supreme Court has abandoned the concept of ‘standing.’” Allen
v. State, 893 N.E.2d 1092, 1096 (Ind. Ct. App. 2008), reh’g denied, trans. denied. As previously explained by
this Court,
In Rakas, the United States Supreme Court determined that the “definition of those [personal]
rights [that is, whether the proponent is asserting his own legal rights and interests rather than
basing his claim for relief upon the rights of third parties] is more properly placed within the
purview of substantive Fourth Amendment law than within that of standing.”
Id. (quoting Rakas v. Illinois, 439 U.S. 128, 140 (1978), reh’g denied) (alterations in original). However,
“Indiana courts have continued to use the ‘standing’ terminology when discussing Fourth Amendment
claims.” Barker, 96 N.E.3d at 648 n.3 (quoting Allen, 893 N.E.2d at 1097 n.4).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 20 of 55
searched. 16 However, as we explain below, even with that assumption, we find
no error in the trial court’s determination that Dunklin gave the officers
voluntary consent to conduct a “preliminary search” of her residence and
garage before applying for a search warrant. Id. at 62. Moreover, even if the
trial court did err, that error did not affect Sisson’s substantial rights.
Voluntariness of Dunklin’s Consent
[34] To be lawful under the state and federal constitutions, “it is axiomatic that a
search requires a warrant unless certain narrow exceptions apply[.]” State v.
Cunningham, 26 N.E.3d 21, 25 (Ind. 2015). One such exception is where the
officers had consent to search, as “a ‘search based on lawful consent is
consistent with both the Indiana and Federal Constitutions.’” Id. (quoting
Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008)). As summarized by our
Supreme Court,
Under both the Fourth Amendment and the Indiana
Constitution, the State carries “the burden of proving ‘that the
consent was in fact voluntarily given, and not the result of duress
16
Sisson did not live with Dunklin, but he may have had a legitimate privacy interest in the premises if he
stayed there the night before his arrest as an overnight guest. See Best v. State, 821 N.E.2d 419, 424 (Ind. Ct.
App. 2005) (“[A]n overnight guest in a home may claim the protection of the Fourth Amendment, but one
who is merely present with the consent of the householder may not.” (quoting Minnesota v. Carter, 525 U.S.
83, 90 (1998))) (alteration in original), reh’g denied, trans. denied. Dunklin gave equivocating testimony at the
suppression hearing about whether Sisson stayed with her the night before his arrest. She first testified in
response to a question from the court that Sission had not stayed the night before but had “simply stopped by”
on the day of his arrest. Supp. Tr. at 11. She then recanted that testimony on re-direct, answering, “Yeah, I
guess so[,]” when Sisson asked if he “had . . . spent the night over at [her] house[.]” Id. Though there was an
argument to be made that Sisson lacked standing, in its brief the State indicated it would not challenge
Sisson’s claimed privacy interest and would instead “assume arguendo that he had standing to contest the
search of Dunkin’s residence and garage.” Appellee’s Br. at 20 n.6.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 21 of 55
or coercion, express or implied.’” Campos, 885 N.E.2d at 600
(quoting [Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)],
and citing Kubsch v. State, 784 N.E.2d 905, 917-18 (Ind.2003)).
“‘Voluntariness is a question of fact to be determined from all the
circumstances.’” Campos, 885 N.E.2d at 600 (quoting
Bustamonte, 412 U.S. at 248-49 . . . ). And “a consent to search is
valid except where procured by fraud, duress, fear, or
intimidation or where it is merely a submission to the supremacy
of the law.” Joyner v. State, 736 N.E.2d 232, 242 (Ind.2000).
McIlquham, 10 N.E.3d at 511. 17
[35] The circumstances that must be considered when determining whether consent
was voluntarily given include the following non-exhaustive factors:
(1) whether the [person giving consent] was advised of [her]
Miranda rights prior to the request to search; (2) the [consenter’s]
degree of education and intelligence; (3) whether the [consenter]
was advised of [her] right not to consent; (4) whether the
[consenter] has previous encounters with law enforcement; (5)
17
Though their language is nearly identical, we generally “interpret Article 1, Section 11 . . . separately and
independently” from the Fourth Amendment. Barker, 96 N.E.3d at 653. But we need not separately analyze
the state and federal constitutions here. Indeed, “[m]any search and seizure issues are resolved in the same
manner under both the Indiana and Federal Constitutions.” Allen, 893 N.E.2d at 1098 (quoting Campos, 885
N.E.2d at 596). And where, as here, the defendant argues the State violated his privacy interest in the
premises searched (rather than the items seized), federal precedent addressing the Fourth Amendment “is
equally applicable under the Indiana Constitution.” Id. (quoting Campos, 885 N.E.2d at 598).
We recognize that one panel of this Court opted not to apply federal precedent to a defendant’s claim that her
consent to a blood draw was not voluntary under Article 1, Section 11. Isley v. State, 202 N.E.3d 1124, 1130-31 (Ind. Ct. App. 2023), trans. denied. Instead, the Isley majority applied the factors articulated by our
Supreme Court in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005) to determine whether the warrantless blood
draw was reasonable. Isley, 202 N.E.3d at 1130-32. But we are persuaded by the Isley concurrence, which
relied on McIlquham to conclude that when, as here, a defendant challenges the voluntariness of consent but
not the reasonableness of the officers’ behavior in executing the search, we need not separately analyze
Article 1, Section 11 and the Fourth Amendment. See id. at 1134-35 (May, J., concurring) (“To hold
otherwise would put police officers in the untenable position of needing to consider whether a search might
be upheld by a court applying the Litchfield factors even after a citizen has consented to a search.”).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 22 of 55
whether the officer made any express or implied claims of
authority to search without consent; (6) whether the officer was
engaged in any illegal action prior to the request; (7) whether the
[consenter] was cooperative previously; and (8) whether the
officer was deceptive as to his true identity or the purpose of the
search.
Crocker v. State, 989 N.E.2d 812, 821 (Ind. Ct. App. 2013) (quoting Callahan v.
State, 719 N.E.2d 430, 435 (Ind. Ct. App. 1999)), trans. denied. 18 We find factors
(1), (3), (5), (6), and (8) particularly relevant here.
[36] Starting with factor (6), Sisson’s arresting officers did nothing untoward before
asking for Dunklin’s consent to search. The evidence most favorable to the trial
court’s ruling shows that the officers lawfully arrested Sisson in the doorway of
Dunklin’s condo and secured him and Dunklin outside the residence with the
intention of applying for a search warrant. See Sugg v. State, 991 N.E.2d 601,
608 (Ind. Ct. App. 2013) (under certain circumstances, officers may “refus[e] to
allow a [person] to enter his or her residence . . . until a search warrant has been
obtained . . . .”), trans. denied. Because it was raining and since Dunklin wanted
to get back to her work-from-home call center job, she invited the officers to
accompany her inside. The officers then allowed her to continue working and
communicated with her only “between [her] phone calls[.]” Tr. Vol. 2 at 47.
18
In third-party consent cases like Sisson’s, we also typically examine whether the consenting party had
authority to consent to a search of property in which the non-consenting party had a legitimate privacy
interest. Krise v. State, 746 N.E.2d 957, 965 (Ind. 2001). Here, however, there is no dispute that Dunklin had
actual authority to consent to the search of her condo and garage, so we do not analyze that requirement.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 23 of 55
While we can certainly understand why Sisson’s arrest was stressful for
Dunklin, the officers were well within their rights to arrest Sisson—a violent
fugitive—with a show of force.
[37] Turning to factor (5), after entering Dunklin’s home, the officers did not
immediately start searching and didn’t claim authority to do so. Instead, they
asked Dunklin for permission to look around the premises, read her certain
“rights,” and had her sign a consent to search. Supp. Tr. at 8. While Sisson did
not make a clear record of what specific rights Dunklin was informed of, it’s
reasonable to infer that she was advised, at minimum, of her Miranda rights
(factor (1)) and her right to not consent to a search (factor (3)). 19 While Dunklin
testified that she did not understand her rights and felt pressured to provide
consent, “her contentions do not outweigh the substantial evidence of
voluntariness presented.” Melton v. State, 705 N.E.2d 564, 567 (Ind. Ct. App.
1999) (affirming lawfulness of a warrantless search when a homeowner allowed
police to enter her home, was not placed under arrest, permitted the officers to
search, didn’t ask them to stop searching, and assisted in the search).
19
Sisson contends Dunklin “was not advised of her right to decline the search.” Appellant’s Br. at 18. As an
initial matter, that assertion is not supported by the record, as Dunklin did not testify about what specific
rights the officers did or did not explain to her. As such, Sisson’s claim that Dunklin was not informed of her
right to refuse consent is mere conjecture. Additionally, Indiana’s appellate courts have upheld consent
searches where officers did not advise the consenter of the right to refuse consent, but the totality of the
circumstances otherwise indicated the consent was voluntarily. See Cox v. State, 160 N.E.3d 557, 562 (Ind.
Ct. App. 2020) (citing examples).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 24 of 55 [38] Under factor (8), the evidence most favorable to the ruling belies Sisson’s claim
that the officers “conceal[ed] their true purpose” by telling Dunklin “they
wanted to do a ‘protective sweep[.]’” Appellant’s Br. at 24. Sisson is right that
“a consent search is reasonable only if it is kept within the boundaries of the
consent.” Melton, 705 N.E.2d at 567. But although George—who was not at
the scene of Sisson’s arrest—used the phrase “protective sweep” in the search
warrant applications, Dunklin’s testimony supports the trial court’s
determination that she gave the officers permission to do more than a mere
protective sweep. In Dunklin’s own words, the officers “told [her] . . . they
were looking for . . . a few items[,]” and she told them to do “whatever you’ve
got to do . . . .” Supp. Tr. at 8-9. What Dunklin described was not a protective
sweep but was—as the trial court reasoned—a “preliminary search” that
allowed officers to look around for potential evidence before “ask[ing] for a . . .
warrant to seize and obtain items[.]” Tr. Vol. 2 at 62.
[39] For these reasons we find substantial evidence of probative value supporting the
trial court’s conclusion that Dunklin gave voluntary consent for officers to
search her residence and garage. Thus, the court did not abuse its discretion by
admitting evidence seized from Dunklin’s condo at Sisson’s trial.
Harmless Error
[40] Even if the challenged evidence was erroneously admitted, “[e]rrors in the
admission of evidence are ordinarily disregarded as harmless error unless they
affect the substantial rights of a party.” Remy v. State, 17 N.E.3d 396, 401 (Ind.
Ct. App. 2014), trans. denied. Whether a party’s substantial rights have been
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 25 of 55
affected turns on the probable impact the erroneously admitted evidence had on
the jury. Id. We will find the erroneous admission of evidence harmless “if the
conviction is supported by substantial independent evidence of guilt satisfying
the reviewing court there is no substantial likelihood the challenged evidence
contributed to the conviction.” Id. (quoting Hoglund v. State, 962 N.E.2d 1230,
1238 (Ind. 2012), reh’g denied).
[41] Aside from the items seized from Dunklin’s condo, there was substantial
independent evidence proving Sisson abducted Hannah on September 16, 2021.
In fact, ignoring the evidence obtained from Dunklin’s residence and garage,
the evidence presented to the jury in this case was overwhelming. See BenYisrayl v. State, 690 N.E.2d 1141, 1148 (Ind. 1997) (finding challenged evidence
did not affect the jury’s verdict in light of overwhelming independent evidence
of the defendant’s guilt), reh’g denied, cert. denied. Hannah provided a detailed
account of what happened to her that was thoroughly corroborated. Her
account of the initial struggle she had with Sisson was consistent with testimony
provided by Hannah’s coworkers, her supervisor, and an officer who responded
to the health plaza when Hannah was reported missing. Their testimonies
established that Hannah’s SUV was parked in its usual spot even though she
did not show up for work that morning. Moreover, there was trampled grass
and a light post that had been knocked over in the same area where Hannah
reported having a physical altercation with Sisson, and Hannah’s keys were
found near where she and Sisson had struggled for them.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 26 of 55 [42] Hanna’s testimony about the route Sisson took that morning matched cell site
location data associated with Hannah’s and Sisson’s cell phones. And at the
same time Hannah’s phone connected to a tower near IU Health West
Hospital, the hospital’s security cameras captured video of Sisson’s white
Nissan dropping Hannah off. Hannah received treatment at the hospital for
injuries consistent with the beatings Sisson allegedly inflicted on her, and the
mud on her pants aligned with her claim that Sisson had made her kneel in a
ditch. Three days after the incident, Sisson was seen on Hannah’s home
security footage driving the Nissan, further proving that Sisson had the vehicle
in his possession. The State is right that “[g]iven this mountain of evidence, it
is clear that [Sisson] would have been convicted without regard to the evidence
located in Dunk[l]in’s garage and in [Sisson’s] car.” Appellee’s Br. at 33.
* * * *
[43] In short, the trial court did not err in admitting evidence obtained from
Dunklin’s home and garage at trial, and even if it did err, that error was
harmless.
2. Substantive Double Jeopardy
[44] Sisson next argues that his convictions for Level 3 felony criminal confinement
(Count II), Level 5 felony kidnapping (Count III), Level 5 felony criminal
confinement (Count IV), and both counts of Level 5 intimidation (Counts VI
and VII) violate the prohibition against substantive double jeopardy and must
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 27 of 55
be vacated. 20 Substantive double jeopardy bars the State from subjecting a
defendant “to multiple convictions or punishments for the ‘same offense’ in a
single trial.” Moyers v. State, 277 N.E.3d 33, 38 (Ind. 2026) (quoting Wadle v.
State, 151 N.E.3d 227, 238-39 (Ind. 2020)). Whether convictions put the
defendant in substantive double jeopardy is a question of law that we review de
novo. Wadle, 151 N.E.3d at 237.
[45] For its part, the State concedes that Sisson’s convictions on Counts II, III, IV,
and VI violate substantive double jeopardy, but it contends that Count VII does
not. The State’s concessions are well-taken; however, “[w]hile we sometimes
accept concessions from the State regarding factual matters, ‘a question of law .
. . is a matter for the courts, not the State, to decide.’” In re K.W., 247 N.E.3d
1250, 1261 (Ind. Ct. App. 2024) (quoting Hochstetler v. State, 215 N.E.3d 365,
371 (Ind. Ct. App. 2023), reh’g denied). We review a “conceded issue for prima
facie error.” Id.; see Covington v. State, No. 25A-CR-335, 2025 WL 2414572, at
*1-3 (Ind. Ct. App. Aug. 21, 2025) (mem.) (reviewing a conceded substantive
double jeopardy claim for prima facie error). “Prima facie error in this context
means ‘at first sight, on first appearance, or on the face of it.’” K.W., 247
N.E.3d at 1261 (quoting Salyer v. Wash. Regular Baptist Church Cemetery, 141
N.E.3d 384, 386 (Ind. 2020)).
20
Sisson does not challenge his conviction for domestic battery (Count V), so we do not factor that
conviction into our substantive double jeopardy analysis.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 28 of 55 [46] Our Supreme Court has fashioned two separate substantive double jeopardy
frameworks. The first, articulated in Wadle and refined by A.W. v. State, 229
N.E.3d 1060 (Ind. 2024), “addresse[s] scenarios when ‘a single criminal act or
transaction violates multiple statutes with common elements.’” Moyers, 277
N.E.3d at 38 (quoting Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020)). The
second, expressed in Powell, “addresse[s] ‘multiplicity,’ which occurs ‘when a
single criminal act or transaction violates a single statute and results in multiple
injuries.’” Id. (quoting Powell, 151 N.E.3d at 263).
[47] In complex, multi-count cases like Sisson’s, the Wadle-Powell dichotomy
requires us to apply either Wadle or Powell to different convictions within the
same appeal. Here, Sisson ultimately concludes that only Count I (Level 3
felony kidnapping) can stand, as Counts II, III, IV, VI, and VII each violate
substantive double jeopardy in relation to Count I. We thus proceed by
analyzing each of the challenged convictions against Count I. 21
21
Though we ultimately reach the same conclusion as Sisson, we take a different route than he proposes to
get there. Sisson first applies the Powell multiplicity framework to his dual kidnapping convictions under
Counts I and III and to his twin criminal confinement convictions under Counts II and IV, concluding that
only Counts I and II can stand under Powell. Then, he uses Wadle to analyze his Level 3 kidnapping
conviction (Count I) against his Level 3 felony criminal confinement conviction (Count II), and he concludes
that only the kidnapping conviction survives. Finally, he applies Wadle to Count I and his intimidation
convictions (Counts VI and VII), ultimately concluding that only Count I can be affirmed without violating
substantive double jeopardy.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 29 of 55
Counts II and IV– Criminal Confinement
[48] We first address whether Sisson’s convictions for Level 3 felony criminal
confinement (Count II) and Level 5 felony criminal confinement (Count IV)
each subject him to substantive double jeopardy based on his conviction for
Level 3 felony kidnapping (Count I). Wadle applies here, “as the statutes under
which the counts were charged clearly define two distinct base offenses.” Easter
v. State, 281 N.E.3d 896, 904 (Ind. Ct. App. 2026); see Ind. Code §§ 35-42-3-2(a)
(2019) (kidnapping), 35-42-3-3(a) (2019) (criminal confinement).
[49] Wadle and A.W. created and refined a three-part test which “generally require[s]
courts to consider whether: (1) the charging statutes permit multiple
punishments; (2) either offense is included in the other; and (3) the defendant’s
acts constitute a single transaction.” Easter, 281 N.E.3d at 908 (citing Wadle,
151 N.E.3d at 253). At step one, we examine the statutory language to
determine whether “either statute clearly permits multiple punishment, either
expressly or by unmistakable implication[.]” A.W., 229 N.E.3d at 1066
(quoting Wadle, 151 N.E.3d at 248). If so, “the court’s inquiry comes to an end
and there is no violation of substantive double jeopardy.” Id. (quoting Wadle,
We find that Sisson’s approach is inefficient and belies the true nature of his substantive double jeopardy
claim. If, for example, we can first determine that Counts II and IV violate substantive double jeopardy in
relation to Count I, there would be no need address whether Count IV can stand in relation to Count II. In
contrast, if—and only if—we determine that Counts II and IV do not violate substantive double jeopardy in
relation to Count I, it would make sense at that point to address Sisson’s alternative argument that Count IV
cannot stand in relation to Count II. But the upshot of Sisson’s claim is that Counts II, III, IV, VI, and VII
violate substantive double jeopardy in relation to Count I—so the most logical track is to begin by analyzing
each of the challenged convictions against Count I.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 30 of 55
151 N.E.3d at 248). Here, both parties agree that neither the kidnapping statute
nor the criminal confinement statute permits multiple punishments, so we
proceed to step two.
[50] Step two calls for application of the “included-offense statutes to determine
statutory intent.” Id. (quoting Wadle, 151 N.E.3d at 248). Our legislature has
defined an “included offense” as one 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 (2012).
[51] Under Wadle, an offense can be included in another “either inherently or as
charged[.]” 151 N.E.3d at 248. An offense is inherently included if it “fit[s]
within one of” section 35-31.5-2-168’s “enumerated subsections.” A.W., 229
N.E.3d at 1067. An offense is factually included (i.e., included as charged) if
“the charging instrument alleges that the means used to commit the crime
charged include all of the elements of the alleged lesser included offense.” Id.
(quoting Wadle, 151 N.E.3d at 251 n.30). As summarized by Easter,
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 31 of 55
To determine if an offense was factually included in another, we
“examine only the facts as presented on the face of the charging
instrument.” A.W.[,] 229 N.E.3d at 1067 (emphasis omitted).
“This includes examining the ‘means used to commit the crime
charged,’ which must ‘include all of the elements of the alleged
lesser included offense.’” Id. (quoting Wadle, 151 N.E.3d at 251).
281 N.E.3d at 909.
[52] Here, both of Sisson’s criminal confinement convictions are lesser-included
offenses of kidnapping, inherently and as charged. Criminal confinement is
inherently included in kidnapping because it “requires proof of the same but
fewer criminal elements as kidnapping.” Madden v. State, 162 N.E.3d 549, 562
(Ind. Ct. App. 2021) (quoting Jones v. State, 159 N.E.3d 55, 66 (Ind. Ct. App.
2020), trans. denied). As explained by Jones,
A kidnapper must act “by fraud, enticement, force, or threat of
force,”[ 22] whereas criminal confinement must be done without
consent.[ 23] Consent is a “voluntary yielding to what another
proposes or desires.” Consent, Black’s Law Dictionary (11th ed.
2019). Non-consent is established by the methods noted in the
statute of “fraud, enticement, force, or threat of force.”
Kidnapping requires removal from one place to another, while
criminal confinement requires an act of confinement. In
removing someone from one place to another, a kidnapper has
22
A person commits kidnapping when they “knowingly or intentionally remove[] another person, by fraud,
enticement, force, or threat of force, from one place to another . . . .” I.C. § 35-42-3-2(a).
23
A person commits criminal confinement when they “knowingly or intentionally confine[] another person
without the other person’s consent . . . .” I.C. § 35-42-3-3(a).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 32 of 55
confined that person to those places. The element of
confinement is a necessary part of forced removal.
159 N.E.3d at 66.
[53] Turning to factual inclusion, the charging information for Counts I, II, and IV
alleged as follows:
COUNT I
On or about September 16, 2021, Ivy Sisson, while armed with a
deadly weapon, to-wit: a gun, did knowingly remove Kristina
[Hannah], by force or threat of force from one place, to-wit: the
parking lot of IU Health Methodist Medical Plaza, to another
place, to-wit: into a vehicle and to a location in the vicinity of
Fair Oaks Farms[.]
COUNT II
On or about September 16, 2021, Ivy Sisson did knowingly
confine Kristina [Hannah] without the consent of Kristina
[Hannah], said Ivy Sisson being armed with a deadly weapon, to
wit: a gun[.]
COUNT IV
On or about September 16, 2021, Ivy Sisson did knowingly
confine Kristina [Hannah] without the consent of Kristina
[Hannah], said act resulting in bodily injury to Kristina
[Hannah], to-wit: lacerations and/or bruising and/or pain[.]
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 33 of 55
Appellant’s App. Vol. 2 at 58-59. On the face of the charging instrument, the
State did not distinguish the kidnapping described in Count I from the acts of
confinement alleged in Counts II and IV. Under A.W., the resulting ambiguity
“create[s] a presumptive double jeopardy violation that [must be] rebutted by
the State using actual evidence at Step 3.” 229 N.E.3d at 1070.
[54] At step three, we conduct a “cabined version of Richardson’s actual evidence
test,” 24 under which we “probe the underlying facts—as presented in the
charging instrument and adduced at trial—to determine whether a defendant’s
actions were ‘so compressed in terms of time, place, singleness of purpose, and
continuity of action as to constitute a single transaction.’” A.W., 229 N.E.3d at
1071 (quoting Wadle, 151 N.E.3d at 249). If the evidence presented at trial
reveals the offenses were “indeed ‘separate,’ there is no Wadle violation, ‘even if
one offense is, by definition, “included” in the other.’” Id. (quoting Wadle, 151
N.E.3d at 249). However, “if the ‘facts show only a single continuous crime,
and one statutory offense is included in the other, then the prosecutor may
charge these offenses only as alternative (rather than cumulative) sanctions.’”
Id. (quoting Wadle, 151 N.E.3d at 249).
24
Under the actual evidence test, as articulated by the Court in Richardson v. State,
the actual evidence presented at trial is examined to determine whether each challenged offense
was established by separate and distinct facts. To show that two challenged offenses constitute
the “same offense” in a claim of double jeopardy, a defendant must demonstrate 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.
717 N.E.2d 32, 53 (Ind. 1999).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 34 of 55 [55] As recently explained by this Court, “[t]o accomplish Step 3, . . . we must first
identify which of the defendant’s actions to analyze.” Afolabi v. State, 279
N.E.3d 939, 955 (Ind. Ct. App. 2026), trans. denied. “This is not a call for post
hoc explanations of how the evidence could have been allocated between the
offenses to avoid substantive double jeopardy.” Easter, 281 N.E.3d at 910
(quoting Afolabi, 279 N.E.3d at 955). Instead, “the State must demonstrate that
it made clear to the fact-finder at trial that the apparently included charge was
supported by independent evidence such that the State made a ‘distinction
between what would otherwise be two of the “same” offenses.’” Ratliff v. State,
242 N.E.3d 1070, 1078-79 (Ind. Ct. App. 2024) (quoting A.W., 229 N.E.3d at
1071), trans. denied.
[56] Here, the State did not meet its burden to show that the kidnapping and
criminal confinement convictions were supported by independent evidence at
trial. As the State concedes, those convictions “were based on the same act of
forcing [Hannah] into the car at gunpoint, keeping her in the car by force
against her will as [Sisson] drove north, and then forcing [Hannah] out of the
car and into a ditch in a cornfield . . . .” Appellee’s Br. at 39. Indeed, nothing
in the evidence presented at trial or in the deputy prosecutor’s closing argument
indicated to the jury that Counts I, II, and IV were factually distinct.
[57] Since the State did not meet its burden to rebut the presumption of double
jeopardy as to Counts I (Level 3 felony kidnapping), II (Level 3 felony criminal
confinement), and IV (Level 5 felony criminal confinement), Sisson’s
convictions on Count II and IV are contrary to law. We remand for the trial
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 35 of 55
court to vacate Count II and its corresponding ten-year consecutive sentence, as
well as Count IV and its six-year concurrent sentence. See Eversole v. State, 251
N.E.3d 604, 609 (Ind. Ct. App. 2025) (holding “that the proper remedy” when
a Wadle violation is found “is to vacate the conviction with the lesser penalty”),
trans. denied.
Count III – Level 5 Felony Kidnapping
[58] Next, we address whether Sisson’s conviction for Level 5 felony kidnapping
(Count III) subjects him to substantive double jeopardy in relation to his
conviction for Level 3 felony kidnapping (Count I). Because Sisson’s
kidnapping convictions were based on different subsections of Indiana Code
section 35-42-3-2, we look to Moyers to determine whether Wadle or Powell
applies here.
[59] Moyers tells us which framework to apply “when a defendant’s convictions stem
from multiple violations of the same statute with differing enhancing
circumstances or penalty levels.” 277 N.E.3d at 36. According to Moyers, “the
applicability of Wadle or Powell . . . depends on whether the convictions are for
offenses stemming from one base offense or two.” Id. at 42. And “[t]o
illustrate the different ways our Legislature has defined offenses,” Moyers
“highlight[ed] three categories of criminal statutes.” Id. at 40.
Category One includes statutes that define a base offense and
elevated offenses as a single statutory offense, rendering Powell
the proper test. . . . Category Two includes statutes that define
separate base offenses and, therefore, distinct statutory offenses,
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 36 of 55
meaning Wadle applies. And Category Three includes statutes
that create a base offense using alternative elements. These
statutes must be read carefully to discern whether the Legislature
intended to define one statutory offense (meaning Powell applies)
or multiple (meaning Wadle applies).
Id. (emphasis added).
[60] The kidnapping statute provides, in relevant part, as follows:
(a) A person who knowingly or intentionally removes another
person, by fraud, enticement, force, or threat of force, from one
place to another commits kidnapping. Except as provided in
subsection (b), the offense of kidnapping is a Level 6 felony.
(b) The offense described in subsection (a) is:
(1) a Level 5 felony if:
(B) it is committed by using a vehicle; or
(3) a Level 3 felony if it:
(A) is committed while armed with a deadly weapon[.]
I.C. § 35-42-3-2(a), (b)(1)(B), (b)(3)(A). This is a Category One statute, as
subsection (a) defines the base offense of kidnapping and sets its lowest penalty
level at a Level 6 felony. Subsection (b) then elevates “[t]he offense described in
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 37 of 55
subsection (a)” to various higher-level felonies. I.C. § 35-42-3-2(b); see Moyers,
277 N.E.3d at 40-41 (holding that the similarly structured criminal confinement
statute, Indiana Code section 35-42-3-3, is a Category One statute). Thus, we
apply Powell to determine whether Sisson’s twin kidnapping convictions violate
substantive double jeopardy.
[61] Powell articulated a two-step test to determine whether a statute “permits the
‘fragmentation’ of a course of criminal conduct into two or more punishable
offenses.” Moyers, 277 N.E.3d at 43 (quoting Powell, 151 N.E.3d at 264).
“Those steps generally require courts to consider: (1) how the charging statute
defines its unit of prosecution; and (2) whether the defendant’s acts constitute a
single transaction.” Easter, 281 N.E.3d at 907.
[62] At step one, we “determine the ‘unit of prosecution’ for the statutory offense at
issue.” White v. State, 264 N.E.3d 99, 105 (Ind. Ct. App. 2025) (quoting Powell,
151 N.E.3d at 264). A unit of prosecution “is the specific act or conduct our
Legislature intended to treat as one punishable offense under a criminal
statute.” Moyers, 277 N.E.3d at 43. If the statute does not explicitly define the
unit of prosecution, “we identify [it] by determining whether the statute is
‘conduct-based’ or ‘result-based.’” Id. (quoting Powell, 151 N.E.3d at 265). As
summarized by Moyers,
A conduct-based statute defines an offense by certain actions or
behavior, and the crime is complete once the offender engages in
the prohibited conduct, regardless of whether that conduct
produces a specific result. Under such statutes, a single discrete
incident can be the basis for only one conviction. By contrast, a
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 38 of 55
result-based statute defines an offense by the defendant’s actions
and the results or consequences of those actions, thus permitting
multiple convictions when multiple consequences flow from a
single criminal act.
Id. (internal quotation marks and citations omitted). If we can identify the unit
of prosecution, “we turn to the facts to determine how many discrete offenses
the evidence supports.” Id. But if the unit of prosecution is ambiguous, we
proceed to Powell’s second step. 151 N.E.3d at 264.
[63] It is well-settled that the kidnapping statute is conduct-based, so the unit of
prosecution is unambiguous. Jones, 159 N.E.3d at 64 (“[K]idnapping is a
conduct-based crime defined by the defendant’s actions[.]”); Madden, 162
N.E.3d at 560 (kidnapping “is a conduct-based statute because the gravamen of
the offense is the action of removing the victim”). Because the unit of
prosecution is unambiguous, we need not turn to Powell’s second step; instead,
we will examine the facts at step one “to determine how many discrete acts of”
kidnapping Sisson committed. 25 Moyers, 277 N.E.3d at 39.
25
Recent panels of this Court have expressed uncertainty about how to conduct the Powell analysis when the
unit of prosecution is unambiguous. For example, in Ryan v. State, the panel noted:
[O]ur Supreme Court has twice instructed us to turn to step two only if we find that the statute's
unit of prosecution is “ambiguous.” See Powell, 151 N.E.3d at 264; Moyers, 277 N.E.3d at 43.
Most recently, in Moyers, the Court made clear that when, as here, the unit of prosecution is
unambiguous, the reviewing court “need[s] just Powell’s first step . . . .” 277 N.E.3d at 44.
And—purportedly at that first step—we can examine the evidence “to determine how many
discrete offenses the evidence supports.” Id. at 43.
We are not sure how examining the facts at step one differs in any material respect from the
continuous crime analysis at step two.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 39 of 55 [64] When examining the facts under Powell, we apply the continuous crime
doctrine to examine “whether the facts—as presented in the charging
instrument and as adduced at trial—indicate a single offense or whether they
indicate distinguishable offenses.” Powell, 151 N.E.3d at 264. We do so by
asking “whether the defendant’s actions [were] ‘so compressed in terms of time,
place, singleness of purpose, and continuity of action as to constitute a single
transaction.’” Id. (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App.
2010), reh’g denied). “If the defendant’s criminal acts are sufficiently distinct,
then multiple convictions may stand; but if those acts are continuous and
indistinguishable, a court may impose only a single conviction.” Id. at 264-65.
[65] Here, the evidence presented at trial established a single act of kidnapping. As
the State concedes, “the facts show only one continuous act of forcible
removal.” Appellee’s Br. at 37. That is, “[b]oth charges were predicated on
removing [Hannah] by force or threat of force,” and “[t]he evidence showed
that there was no break in the continuity of action from the time [Sisson] first
began removing [Hannah] at gunpoint from the parking lot until the time that
he forced her out of the car at gunpoint into the ditch in the cornfields . . . .” Id.
282 N.E.3d 1035, 1043-44 (Ind. Ct. App. 2026), trans. denied. Indeed, cases applying Powell have been
inconsistent about whether an unambiguous unit of prosecution calls for factual analysis under step one, step
two, or something in between. See White, 264 N.E.3d at 106 (applying step two despite holding that the child
molesting statute “is a conduct-based statute”); Easter, 821 N.E.3d at 907 n.3 (“[I]t seems that a Powell
analysis also proceeds to Step 2—at least in part—when a statute’s unit of prosecution is deemed
unambiguously conduct-based at Step 1”); but see Moyers, 277 N.E.3d at 44 (“[W]e need just Powell’s first step
to ascertain that the criminal confinement statute permits only one conviction for a single period of
continuous confinement.”).
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 40 of 55
As such, Sisson’s dual kidnapping convictions put him in substantive double
jeopardy, and his conviction on Count III is contrary to law. We remand for
the trial court to vacate Sisson’s conviction on Count III and its corresponding
six-year concurrent sentence. See Moyers, 277 N.E.3d at 45 (applying the
Eversole remedy to a Powell violation).
Counts VI and VII – Level 5 Felony Intimidation
[66] Finally, we determine whether Sisson’s convictions for Level 5 felony
intimidation (Counts VI and VII) each put him in substantive double jeopardy
based on his conviction for Level 3 felony kidnapping (Count I). Wadle controls
that analysis, as the kidnapping and intimidation statutes clearly define separate
base offenses. See I.C. §§ 35-42-3-2(a) (kidnapping), 35-45-2-1(a) (intimidation).
[67] Here, Sisson and the State agree at step one that neither the kidnapping statute
nor the intimidation statute permits multiple punishments. They also agree at
step two that while intimidation is not inherently included in kidnapping,
Counts VI and VII are factually included in Count I. The charging information
for Counts VI and VII alleged the following: 26
COUNT VI
On or about September 16, 2021, Ivy Sisson did communicate a
threat to Kristina [Hannah], another person, while drawing or
using a deadly weapon, with the intent that Kristina [Hannah]
26
Since we recited the charging information for Count I above, we have not repeated it here.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 41 of 55
engage in conduct against her will by getting in a vehicle with
him and/or staying in the vehicle[.]
COUNT VII
On or about September 16, 2021, Ivy Sisson did communicate a
threat to Kristina [Hannah], another person, by drawing or using
a deadly weapon, with the intent that Kristina [Hannah] be
placed in fear that the threat will be carried out[.]
Appellant’s App. Vol. 2 at 59.
[68] The State correctly notes that Counts I and VI “were predicated on the same
conduct; the evidence that [Sisson] forced [Hannah] at gunpoint to walk across
the parking lot and enter his car . . . .” Appellee’s Br. at 42. Thus, Count VI
puts Sisson in substantive double jeopardy in relation to Count I. However, the
State argues Count VII does not similarly violate substantive double jeopardy
because Sisson “communicated additional threats involving the use of his gun,
beyond the threat of force used to effectuate the kidnapping, that support this
intimidation charge.” Id. at 43. While we agree the evidence at trial could have
supported a finding that Sisson threatened Hannah with the gun numerous
times, the relevant inquiry at step three of Wadle is not how the jury could have
understood the evidence, but how it did so given the way the State presented its
case. Easter, 821 N.E.3d at 911.
[69] Here, we have uncommon insight into the jury’s thinking because it sent a note
to the trial judge stating that in the jurors’ minds, “charges 6 and 7 [were] very
similar” and “should have been rolled into one charge.” Appellant’s App. Vol.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 42 of 55
5 at 72. Based on that note, we can confidently say the State did not make clear
to the jury that Counts VI and VII were supported by distinct facts. And since
it is undisputed that the State did not distinguish Counts I and VI, logic dictates
that the State did not distinguish Counts I and VII, either. The State has
therefore failed to meet its burden to rebut the presumption of substantive
double jeopardy as to Counts I, VI, and VII, and Sisson’s convictions and
sentences on Counts VI and VII must be vacated.
* * * *
[70] In closing, we briefly address the effect our decision will have on Sisson’s
aggregate sentence. Though vacating the concurrent sentences on Counts III,
IV, VI, and VII will not impact Sisson’s overall sentence, vacating his ten-year
consecutive sentence on Count II will. This contrasts with Wadle, where the
defendant received an aggregate sixteen-year sentence after being convicted of
one Level 3 felony and three lower-level felony offenses. 151 N.E.3d at 236.
After vacating the three lower-level felonies, the Court reasoned it did not have
to remand for resentencing because the Level 3 felony “conviction alone
justif[ied] the penalty imposed[.]” Id. at 256 (citing Ind. Code § 35-50-2-5(b)
(2014) (setting the maximum sentence for a Level 3 felony at sixteen years)).
[71] In Moyers, the defendant received an aggregate 100-year sentence after being
convicted of a Level 1 felony, a Level 3 felony, and a Level 4 felony. 277
N.E.3d at 37. There, the trial court imposed the maximum sentence permitted
by law: a forty-year sentence on the Level 1 felony, Ind. Code § 35-50-2-4
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 43 of 55
(2023); a sixteen-year sentence on the Level 3 felony, I.C. § 35-50-2-5(b); and a
twelve-year sentence on the Level 4 felony, Ind. Code § 35-50-2-5.5 (2014), all
of which were consecutive. 27 After vacating the Level 4 felony conviction, the
Court—as it had done in Wadle—did not remand for the trial court to
reconsider its sentencing decision because it had already imposed the maximum
possible sentence on each of the remaining convictions. 277 N.E.3d at 46.
Instead, the Court merely instructed the trial court to amend its sentencing
order to subtract the portion of the defendant’s sentence associated with the
vacated conviction. Id.
[72] Here, unlike the defendants in Wadle and Moyers, Sisson did not receive the
maximum possible aggregate sentence on his surviving convictions. Sisson
faced up to sixteen years for his Level 3 felony kidnapping conviction, I.C. § 35-50-2-5(b), and up to six years for his Level 5 felony domestic battery conviction,
Ind. Code § 35-50-2-6(b) (2014). While he received the maximum of six years
on the Level 5 felony conviction, the trial court imposed just fifteen years on the
Level 3 felony. As this Court has previously explained,
[A] trial court is likely to view individual sentences in a multicount proceeding as part of an overall plan, a plan that can be
overthrown if one or more of the convictions is reversed or
reduced in degree. We join with those courts who allow the trial
27
In Moyers, the total of the consecutive terms of imprisonment for the Level 3 and Level 4 felony
convictions was capped at twenty-years pursuant to Ind. Code § 35-50-1-2(d) (2025) (amended July 1, 2026).
Moreover, the Moyers defendant had another forty years added to his sentence because he received two
twenty-year enhancements for using a firearm to commit his crimes and for being a habitual offender. 277
N.E.3d at 37.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 44 of 55
court flexibility upon remand, including the ability to increase
sentences for individual convictions without giving rise to a
presumption of vindictive sentencing, so long as the aggregate
sentence is no longer than originally imposed.
Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013), trans denied. Thus, on
remand, the trial court may reconsider its sentencing decision in light of our
holding that only Counts I and V may stand without violating substantive
double jeopardy.
Conclusion
[73] For these reasons, we affirm Sisson’s convictions for Level 3 felony kidnapping
(Count I) and Level 5 felony domestic battery (Count V) and remand with
instructions for the trial court to vacate Sisson’s other convictions and their
corresponding sentences. On remand, the trial court may amend Sisson’s
sentences on Count I and V in a manner that is not inconsistent with this
opinion.
[74] Affirmed in part and remanded.
Mathias, J., concurs in part and concurs in result in part with a separate
opinion.
Kenworthy, J., concurs.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 45 of 55 ATTORNEYS FOR APPELLANT
Talisha Griffin
Casey Farrington
Marion County Public Defender Agency
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Indianapolis, Indiana
Ellen Meilaender
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 46 of 55
Mathias, Judge, concurring in part and concurring in result in part.
[75] I fully join the majority’s opinion in all parts except for its substantive doublejeopardy analysis involving Count III. As to that analysis, I concur in the result
and write separately to discuss our Supreme Court’s analysis in Powell and the
Court’s subsequent application of Powell in Moyers. I see no serious deviations
from Powell in Moyers; our Supreme Court has already clarified its analysis in
Powell. To summarize: in resolving Powell claims, I would follow our Supreme
Court’s guidance in A.W. v. State, and I read our Supreme Court’s analysis in
Moyers to have simply provided an efficient resolution of that argument.
[76] In Wadle and Powell, our Supreme Court articulated new tests for determining
substantive double-jeopardy claims under Indiana law. See Moyers v. State, 277
N.E.3d 33, 36 (Ind. 2026). When the issue is whether the State has alleged or
used the same facts to support separate statutory base offenses, our Supreme
Court’s analysis in Wadle applies. See id. at 40. In Wadle, our Supreme Court
originally articulated “a two-part inquiry” into such claims. 151 N.E.3d 227,
235 (Ind. 2020). First, we were to determine, “under our included-offense
statutes, whether one charged offense encompasse[d] another charged offense.”
Id. “If neither offense” was “an included offense of the other (either inherently or
as charged), there [wa]s no violation of double jeopardy,” and the analysis would
end. Id. at 248 (emphasis added). However, if the analysis did not end there, we
were to proceed to the “[s]econd” step, namely, “look[ing] at the underlying
facts—as alleged in the information and as adduced at trial—to determine whether
the charged offenses are the ‘same.’” Id. at 235 (emphasis added). That step
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 47 of 55
included determining whether the facts were so compressed as to “show only a
single continuous crime.” Id.
[77] But when the substantive double-jeopardy claim is that the State has alleged the
same statutory base offense more than once, the analysis proceeds under Powell
to determine whether the defendant was charged and convicted of discrete,
prosecutable acts. See Moyers, 277 N.E.3d at 40. In Powell, the Court articulated
a different “inquiry involv[ing] a two-step process,” which the Court described
as follows:
First, we review the text of the statute [of conviction] itself. If the
statute, whether expressly or by judicial construction, indicates a
unit of prosecution, then we follow the legislature’s guidance and our
analysis is complete. But if the statute is ambiguous, then we proceed to
the second step of our analysis.
Under this second step, a court must determine whether the
facts—as presented in the charging instrument and as adduced at trial—
indicate a single offense or whether they indicate distinguishable
offenses. To answer this question, we ask whether the
defendant’s actions are “so compressed in terms of time, place,
singleness of purpose, and continuity of action as to constitute a
single transaction.” If the defendant’s criminal acts are
sufficiently distinct, then multiple convictions may stand; but if
those acts are continuous and indistinguishable, a court may
impose only a single conviction.
151 N.E.3d 256, 264-65 (Ind. 2020) (cleaned up; emphases added).
[78] The Wadle scenario happens more frequently, and so our Court was presented
with it first. In particular, and as relevant here, multiple panels of our Court
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 48 of 55
were unsure of how to apply the “inherently or as charged” language at the first
step as well as how to apply the “as alleged in the information and as adduced
at trial” language in the second step. See A.W., 229 N.E.3d at 1067-69. That is,
we were unsure of the proper sequencing between looking at the relevant
statutes, looking at the charging information, and looking at the State’s factual
theories at trial. See id. (discussing the confusion among panels of our Court).
[79] Thus, in A.W., our Supreme Court clarified and rearticulated the Wadle test as a
three-step analysis: (1) determine whether our legislature clearly intended for
multiple punishments for the convictions at issue (if it did, the analysis is over);
(2) if legislative intent is not dispositive, determine whether the manner in
which the State chose to write the charging information shows factually distinct
offenses (if the information does so, the analysis is over; if it does not, the result
is a presumptive double-jeopardy violation); and (3) if a presumptive doublejeopardy violation exists, determine whether the State’s factual theories at trial
rebutted the presumptive violation by making clear to the fact-finder that each
conviction was premised on sufficiently distinct facts. Id. at 1071-73. Steps 2
and 3 require the State to show not just sufficiently independent factual bases
for the offenses but also that those factual bases are not so “compressed in terms
of time, place, singleness of purpose, and continuity of action as to constitute a
single transaction.” Id. at 1073.
[80] A.W. is a Wadle opinion, not a Powell opinion. Because Wadle scenarios are so
much more common than Powell scenarios, our Supreme Court has only
addressed its Powell analysis on two occasions: in Powell itself and then in
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 49 of 55
Moyers. As for Powell, the Court first held that the statute at issue was
ambiguous in identifying its unit of prosecution; thus, the Court had to construe
the statute under our rules of statutory construction to discern the relevant unit
of prosecution so that the Court could consider whether a multiplicity error had
occurred. 151 N.E.3d at 265-68. The Court also noted that “the legislature is
free to define whether a single statutory offense will subsist for a definite period
or cover successive, similar occurrences. And when it does, we simply follow
that guidance and our analysis is complete.” Id. at 268-69. However, no such
legislative guidance existed in Powell. Id. at 269.
[81] Once the Court determined the relevant legislative intent, the Court then
considered whether “the facts show[ed] that [the defendant’s] multiple gunshots
amounted to distinguishable offenses . . . .” Id. at 268 (cleaned up). In doing so,
the Court first discussed the charging information. Id. The information
identified two distinct, alleged offenses based on the actual injuries to one
victim and the near-misses of the other victim, rather than one offense
“for . . . each [of the five or six] . . . shots fired.” Id. at 268-69. The State had
argued on appeal that charging one offense for each shot fired would have been
permitted under the statutes. Id. at 269. The Court concluded that such charging
would be contrary to law. Id. From there, the Court turned to the State’s factual
theories at trial; at this step, the Court concluded that the State had sufficiently
supported two distinct, prosecutable offenses and not a single, continuous
offense. Id. at 270.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 50 of 55 [82] In other words, both Wadle and Powell originally purported to describe “two
step” inquiries. But both opinions instructed Indiana’s courts to look to three
sources for determining an alleged substantive double-jeopardy violation: the
relevant statutory language, the relevant charging information language, and
the State’s factual theories at trial. In A.W., the Court clarified, at least as to
Wadle, the proper sequence in considering those concerns: statutory language
first, charging information second, trial theories third. The Court in Powell did
not mandate that sequence explicitly, but it did employ that same sequence.
Further, the Powell Court’s analysis was premised on a purported two-step
inquiry that was similarly worded to Wadle in ways that had caused our
Supreme Court in A.W. to clarify Wadle as really being a three-step analysis.
And both Wadle and Powell also instructed that the State must show not only
factually distinct offenses but offenses that are not so compressed as to
constitute a single offense. I would thus conclude that A.W., while technically a
Wadle case, is also instructive on how to analyze Powell claims.
[83] That brings us to our Supreme Court’s recent opinion in Moyers. In Moyers, the
Court described Powell’s purported “two steps” as follows: “At step one of the
test, we determine if the statute, whether expressly or by judicial construction,
indicates a unit of prosecution.” 277 N.E.3d at 43 (cleaned up). Once the unit
of prosecution has been determined, we then “turn to the facts to determine
how many discrete offenses the evidence supports.” Id. But if it remains unclear
whether a multiplicity error occurred, then, “[a]t step two,” we will “determine
whether the facts—as presented in the charging instrument and as adduced at
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 51 of 55
trial—indicate a single offense or whether they indicate distinguishable
offenses.” Id. (cleaned up). The Court added that “[t]he question at this stage is
whether the defendant’s actions are so compressed in terms of time, place,
singleness of purpose, and continuity of action as to constitute a single
transaction.” Id. (cleaned up).
[84] The Court then said that its analysis of the case before it did not need to
advance beyond the first step. Id. at 44. In particular, the Court stated that the
relevant unit of prosecution was unambiguous. Id. Thus, the Court went
straight to “[t]he ultimate question,” namely, “whether the evidence show[ed]
[that the defendant had] committed one or two discrete acts . . . .” Id. And,
looking at the State’s factual theories to the jury, the Court concluded that the
State had demonstrated only one discrete, prosecutable act under the relevant
criminal statutes. Id. at 44-45. Thus, the Court concluded that the defendant’s
two convictions were contrary to law.
[85] The majority here notes and joins other panels of our Court that have
recognized that Moyers’s articulation of the Powell analysis is not exactly the
same “one-two” breakdown stated in Powell itself. See supra n.25. But this
apparent difference between Powell and Moyers is not one of substance. Moyers
said to determine relevant legislative intent first; then determine if the
defendant’s multiple convictions are contrary to that intent with respect to the
fundamental unit of prosecution; and, if the State supported discrete,
prosecutable offenses, then also consider whether those offenses are nonetheless
so compressed as to be one offense. That sequencing is not inconsistent with
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 52 of 55
Powell or with how A.W. recast Wadle’s similarly-worded two-part inquiry. And
where the line gets drawn between “step one” and “step two” in that
sequencing is ultimately not dispositive, even if a two-step inquiry is an accurate
way to continue to think about a Powell analysis.
[86] More notable in Moyers’s application of the Powell test is not where the Court
drew the line between the two purported steps but in the parts of the analysis
the Court skipped over. Having determined the unit of prosecution, the Court
went straight to whether the defendant’s two convictions were based on one
discrete, prosecutable act. By implication, the Court did not need to discuss the
charging information; there cannot be two convictions without two charges,
and, had the charges unambiguously stated certain factual theories but the
State’s arguments at trial in support of those charges been based on other
factual theories, that would have presented a whole different set of issues. See
O’Connor v. State, 234 N.E.3d 242, 246 n.2 (Ind. Ct. App. 2024). Further, with
the Court having determined that the defendant had been erroneously twice
convicted for one discrete, prosecutable act, the Court had no need to say
anything at all about whether the facts were so compressed as to make two
offenses one offense. In other words, the Court’s analysis in Moyers simply
disposed of the case in front of it efficiently. 28
28
Indeed, the Court’s main focus in Moyers was not how to apply Powell but whether to apply Powell. See 277
N.E.3d at 36.
Court of Appeals of Indiana Opinion 25A-CR-3174 September 4, 2026 Page 53 of 55 [87] For these reasons, I would resolve Sisson’s argument that his conviction under
Count III is contrary to law as follows. First, I concur with the majority’s
assessment in paragraph 60 that Powell applies here, as Sisson’s convictions for
Counts I and III share the same statutory base offense. Second, I agree with the
majority’s recognition in paragraph 63 that the statutory unit of prosecution for
kidnapping is unambiguous.
[88] Third, I note that there is some difference in how the State wrote the two
charges here. Count I is premised on Sisson having removed Kristina from “the
parking lot of IU Health Methodist Medical Plaza” while Count III is premised
on him having removed her from “an Ace Hardware parking lot near IU Health
Methodist Medical Plaza.” Appellant’s App. Vol. 2, pp. 58-59. Those are two
different acts, and in theory they could have each been within discrete,
prosecutable acts of kidnapping. But the totality of the charges makes clear that
these two possibly distinct acts occurred near the same place, near the same
time, and for the same reasons, and Count III is not otherwise premised on
Count I having been completed. See, e.g., A.W., 229 N.E.3d at 1073. Thus, I
would conclude that the State’s charges, at a minimum, fail to unambiguously
demonstrate that the two charges are not based on facts that are so compressed
as to be a single offense. See, e.g., id. (noting that doubts about the scope of the
charges in an information are to be construed favorably to the defendant).
[89] Therefore, I would conclude that the charges present a rebuttable presumption
of a substantive double-jeopardy violation between Counts I and III, and I
would proceed to consider the State’s factual theories on those charges to the
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jury. And, here, the State expressly argued to the jury that its factual theory
underlying Count III was identical to the State’s factual theory for the base
offense underlying Count I. Tr. Vol. 3, pp. 193-94. That is, and contrary to the
majority’s analysis, the State’s argument to the jury did not allege two distinct
offenses that were so compressed as to be a single offense; the State’s argument
was that these two charges were factually one discrete, prosecutable act.
[90] The State did not sufficiently demonstrate two discrete, prosecutable acts of
kidnapping, and I therefore concur in the majority’s conclusion that Sisson’s
conviction and sentence under Count III must be vacated.
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