Famous Thompson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] After an altercation involving the mother of his son, Famous Thompson was charged with, and convicted of, Level 5 felony intimidation, Level 6 felony criminal recklessness, and Level 6 felony pointing a firearm.¹ Thompson contends that his conviction for Level 6 felony pointing a firearm should be vacated because his convictions for both Level 5 felony intimidation and Level 6 felony pointing a firearm violate the prohibitions against double jeopardy. The State does not oppose Thompson's request to vacate the pointing-a-firearm conviction, acknowledging that it had failed to distinguish the evidence supporting the intimidation charge and the evidence supporting the pointing-a-firearm charge. Concluding that the challenged convictions violate the prohibitions against double jeopardy, we remand the matter to the trial court with instructions to vacate Thompson's conviction for the pointing-a-firearm charge.

Facts and Procedural History

[2] At approximately 8:00 p.m. on April 15, 2025, Erica Pryor was preparing dinner for her children when she heard a knock at the door. When Pryor opened the door, Thompson pointed “a gun in [Pryor's] face” and said “B[****], where's my motherf[***]ing son?” Tr. Vol. II p. 109. Thompson

proceeded to put the gun to [Pryor's] head or then tell [her] he was going to take [her] life in broad daylight in front of everybody out here. He didn't care. [She did not] know him like that. And he was just very angry. So then after that, fired the gun and considered to be angry flailing it in [Pryor's] face back up to [her] head. Pointed it inside my home where [her] children are, yeah.․ So [Pryor's] cooking a meal for [her] kids and then he's wanting to leave off now angrily and he points the gun at [Pryor's] dog. He says, I will shoot your motherf[***]ing dog.․ To get away, [Pryor] slammed with the front door, he was going back to his vehicle and was parked in the middle of my street.

Tr. Vol. II pp. 109–10.

[3] Two days later, the State charged Thompson with Level 5 felony intimidation, Level 6 felony criminal recklessness, and Level 6 felony pointing a firearm. As it relates to the intimidation charge, the State alleged that Thompson had communicated a threat to kill to Pryor “by drawing or using a deadly weapon, that is: a handgun, with the intent that [Pryor] be placed in fear that the threat will be carried out[.]” Appellant's App. Vol. II p. 18. As it relates to the pointing-a-firearm charge, the State alleged that Thompson “did knowingly point a firearm, to-wit: a handgun, at [Pryor].” Appellant's App. Vol. II p. 18.

[4] A jury trial was held on June 24, 2025. In making its closing argument, the State cited the same act, i.e., pointing a firearm at Pryor as supporting both the intimidation and pointing-a-firearm charges. The jury found Thompson guilty as charged. The trial court sentenced Thompson to a four-year term for the Level 5 felony conviction and to concurrent two-year terms for each of the Level 6 felony convictions, for an aggregate four-year term of imprisonment.

Discussion and Decision

[5] Thompson contends that his convictions for both intimidation and pointing a firearm violate the prohibitions against double jeopardy. Questions of law, including double-jeopardy claims, are reviewed de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024). “[S]ubstantive double jeopardy refers to claims related to multiple convictions for the same offense in a single proceeding.” Id. at 1066. “Substantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.” Wadle v. State, 151 N.E.3d 227, 247 (Ind. 2020). “In either circumstance, the dispositive question is one of statutory intent.” Id.

[6] When a single criminal act or transaction violates multiple statutes with common elements, courts “first look to the statutory language” for each charge. Id. at 248. If the language of either statute “clearly permits” multiple punishments, there is no double-jeopardy violation. Id. In this case, neither applicable statute clearly permits multiple punishments, either expressly or by unmistakable implication, so we move on to the next step of the analysis. See Ind. Code § 35-45-2-1 (intimidation); Ind. Code § 35-47-4-3(b) (pointing a firearm).

[7] The next step is to determine whether one of the offenses is inherently or factually included in the other. Wadle, 151 N.E.3d at 248.

“Included offense” means an offense 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. “[T]o constitute an inherently included offense, it must fit within one of [the] enumerated subsections” of Indiana Code § 35-31.5-2-168. A.W., 229 N.E.3d at 1067. “ ‘If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy’ and the analysis ends—full stop.” Id. (quoting Wadle, 151 N.E.3d at 248). “But if one offense is included in the other, the court must proceed to Step 3.” Id.

[8] In A.W., the Indiana Supreme Court concluded that when the charging information for intimidation states that the defendant threatened the victim while drawing or using a handgun, it is ambiguous whether the pointing a firearm charge is included in the intimidation charge. Id. at 1070. Therefore, there is a presumptive double jeopardy violation that the State must rebut “using actual evidence at Step 3.” Id.; see Bolcerek v. State, 255 N.E.3d 1206, 1218-19 (Ind. Ct. App. 2025) (providing that the manner in which the State drafted the information between those two offenses created a rebuttable presumption of a substantive double jeopardy violation, and, for those two charges, we proceed to the third step of the analysis), trans. denied. “In effect, this removes the need to rely on evidence at Step 2 by focusing exclusively on the State's charging allegations.” A.W., 229 N.E.3d at 1070.

[9] In this case, as it relates to the intimidation charge, the State alleged that Thompson communicated

a threat to commit a forcible felony, that is: Battery by Means of a Deadly Weapon and/or a threat to kill, to [Pryor], another person, by drawing or using a deadly weapon, that is: a handgun, with the intent that [Pryor] be placed in fear that the threat will be carried out[.]

Appellant's App. Vol. II p. 18. As it relates to the pointing-a-firearm charge, the State alleged that Thompson “did knowingly point a firearm, to-wit: a handgun, at [Pryor].” Appellant's App. Vol. II p. 18. Because the charging information alleges that Thompson committed both offenses by pointing a firearm at Pryor, the parties agree that the charging information is drafted in a manner which creates a rebuttable presumption of a substantive double jeopardy violation. We therefore move on to the third step of the Wadle analysis.

[10] The third and final step of our substantive double jeopardy analysis gives the State the opportunity to rebut the presumptive double jeopardy violation. To do so, “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. However, if the State's evidence at trial “shows only a single continuous crime, and one statutory offense is included in the other,” the State may not obtain cumulative convictions. Id. at 1079 (quotation marks and brackets omitted).

Bolcerek, 255 N.E.3d at 1219.

[11] The State “acknowledges that the record does not show that [it] made a distinction between the evidence supporting the pointing a firearm charge and the evidence supporting the intimidation charge.” Appellee's Br. p. 6. In order to prove both charges, the State relied on Pryor's testimony that Thompson had pointed a firearm at her when she opened the door. Thus, “[u]nder these circumstances, the State does not oppose Thompson's claim that the pointing a firearm offense was included in the intimidation offense and ‘compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ ” Appellee's Br. pp. 8–9 (quoting A.W., 229 N.E.3d at 1071).

[12] “Where a defendant is found guilty of both the greater offense and an included offense, the proper procedure is to vacate the conviction for the included offense and to enter a judgment of conviction and sentence only upon the greater offense.” O'Connor v. State, 234 N.E.3d 242, 247 (Ind. Ct. App. 2024). We agree with the State that the proper remedy in this case “is to vacate the conviction for the lesser offense of pointing a firearm[.]”² Appellee's Br. p. 9.

[13] The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions for the trial court to vacate Thompson's conviction for Level 6 felony pointing a firearm.

FOOTNOTES

1.   Thompson does not challenge his conviction for Level 6 felony criminal recklessness.

2.   We note that because Thompson's two-year sentence for his conviction for pointing a firearm was ordered to run concurrent to his four-year sentence for intimidation, vacating the pointing-a-firearm charge will not affect the length of Thompson's sentence.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur