DUNCAN v. STATE (2026)

MEMORANDUM DECISION

[1] DeSean Tyrone Duncan appeals his convictions for Level 5 felony intimidation and Level 6 felony pointing a firearm.¹ Duncan raises a single issue for our review, namely, whether his two convictions violate Indiana's prohibition against substantive double jeopardy. The State concedes that they do, and we agree. We therefore reverse Duncan's conviction for Level 6 felony pointing a firearm.

Facts and Procedural History

[2] On February 1, 2023, Duncan came home to an apartment he shared with his pregnant girlfriend, N.B., in Marion County. Duncan called N.B. back into a bedroom, where he then attacked her. Duncan had a handgun holstered on his hip at the time of the attack. Law enforcement officers arrived at the apartment's front door shortly thereafter. Duncan then took “his gun out” of its holster and “threaten[ed] to kill” N.B. if she said anything to the officers. Tr. Vol. 2, p. 110.

[3] On February 3, N.B. contacted police about Duncan's attack. The State charged him with numerous offenses, including Level 5 felony intimidation and Level 6 felony pointing a firearm. In particular, the State's charge of Level 5 felony intimidation alleged that Duncan “did communicate a threat to [N.B.] ․ by drawing or using a deadly weapon[ ] with the intent that [N.B.] be placed in fear that the threat will be carried out[.]” Appellant's App. Vol. 2, p. 28. And the State's charge for Level 6 felony pointing a firearm alleged that Duncan “did knowingly or intentionally point a firearm, to-wit: a handgun, at [N.B.].” Id.

[4] At his ensuing jury trial, N.B. testified to the attack and Duncan's use of the firearm to intimidate her. During the State's closing argument, the prosecutor argued as follows:

Count VI, intimidation, the defendant did communicate a threat to [N.B.] ․ by drawing or using a deadly weapon with the intent that [N.B.] be placed in fear that the threat will be carried out. You didn't just hear about this from [N.B.] You also heard from her sister ․ He threatened to kill everybody in the apartment, took his gun off of his hip and said, “if you say anything, I will kill you all.” You heard them testify that they were in fear for not only their own safety but for the one-year-old that was in the other room. The defendant is guilty of Count VI.

Count VII, pointing a firearm, the defendant did knowingly or intentionally point a firearm [at N.B.] Again, you heard through [her] testimony that the gun was pointed at her. You heard through [her sister's] testimony that there was a gun and that he threatened them. The defendant is guilty of Count VII.

Tr. Vol. 2, p. 202.

[5] The jury found Duncan guilty in relevant part on both Count VI and Count VII. The trial court entered its judgment of conviction against Duncan on both counts. The court then ordered him to serve an aggregate sentence of ten years in the Department of Correction. Duncan's sentences on Count VI and Count VII are to be served concurrently with a ten-year sentence imposed for a Level 3 felony conviction.

[6] This appeal ensued.

Discussion and Decision

[7] The only issue in this appeal is whether Duncan's convictions for Level 5 felony intimidation (Count VI) and Level 6 felony pointing a firearm (Count VII) violate Indiana's prohibitions against substantive double jeopardy. We review such issues de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).

[8] To determine if a substantive double jeopardy violation has occurred, we apply a three-part test based on statutory sources. Id. at 1066. The first step requires us to consider the statutory language of the two offenses at issue; if that language “clearly permits multiple punishment,” then “there is no violation of substantive double jeopardy.” Id. The State properly recognizes that the statutes at issue here do not clearly permit multiple punishments. Appellee's Br. at 9.

[9] We thus turn to the second step of the analysis. As relevant here, this step turns on whether the face of the charging information identified supporting facts to make clear that the two charges were distinct and one charge was not an included offense of the other. See Bolcerek v. State, 255 N.E.3d 1206, 1217-18 (Ind. Ct. App. 2025), trans. denied. An offense is an included offense “where the charging information states that the ‘means used’ to commit the alleged greater offense ‘include all of the elements of the alleged lesser included offense.’ ” Id. at 1217 (quoting A.W., 229 N.E.3d at 1067).

[10] Here, the charging information shows that the means used to commit the offense of Level 5 felony intimidation was the pointing of a firearm at N.B. Thus, the face of the charging information did not distinguish between the Level 5 felony intimidation charge and the Level 6 felony pointing a firearm charge. As a result, Duncan has shown a presumptive double jeopardy violation, and we proceed to step three.

[11] 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. The State did not do so here. Accordingly, Duncan's convictions for both Level 5 felony intimidation and Level 6 felony pointing a firearm cannot stand.

[12] Where a substantive double jeopardy violation has occurred, “the proper remedy is to vacate the conviction with the lesser penalty ․” Eversole v. State, 251 N.E.3d 604, 609 (Ind. Ct. App. 2025), trans. denied. We therefore reverse Duncan's conviction for Level 6 felony pointing a firearm as charged in Count VII and vacate its corresponding (two-year concurrent) sentence. Duncan's aggregate ten-year sentence remains unchanged.

[13] Reversed.

FOOTNOTES

1.   Duncan does not appeal his convictions for Level 3 felony criminal confinement, Level 5 felony domestic battery, Level 5 felony unlawful carrying of a handgun, or Level 5 felony strangulation.

Mathias, Judge.

May, J., and Felix, J., concur.