Dontrell Tracy McCaster, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Dontrell Tracy McCaster appeals his convictions for strangulation as a level 6 felony and aggravated battery as a level 3 felony asserting that those convictions violate double jeopardy. He further asserts that the court improperly merged, rather than vacated, certain convictions. We reverse and remand.

Facts and Procedural History

[2] In November 2024, N.H. was living in a one-bedroom apartment in Lafayette with her boyfriend, McCaster, and their three-year-old son and four-year-old daughter. On the evening of November 24, 2024, N.H. was working for DoorDash when she received a Facebook Messenger call from a male high school acquaintance named Khalil Moore. N.H. told Moore that she would call him back, hung up the phone, and deleted the message thread and call log because she knew that McCaster “would act irrationally if he saw it.” Transcript Volume II at 213. N.H. returned home and went to sleep.

[3] The next morning, N.H. was awakened in her bed by “getting smacked” by McCaster. Id. Both young children slept in the same room and were present. McCaster was “very angry” and, in addition to repeatedly slapping her, he “yanked” N.H. up by her “hair bun” and showed her a message on her phone from Moore that said, “[D]amn, never called back.” Id. McCaster dragged N.H. over to the toddler bed where their young son was sleeping and asked her if she enjoyed being hit in front of their son. N.H. returned to sit on her bed, and McCaster “was slapping [her] over and over and asking [her] about the text message and phone call.” Id. at 215. McCaster slapped N.H. on the side of her head and her face.

[4] Over the next two hours, McCaster continued to slap N.H., punched her, and choked her three or four times using both hands until she could not breathe. Two of the times McCaster was choking her, N.H. involuntarily urinated on herself. N.H. was afraid McCaster was going to kill her.

[5] At one point, McCaster permitted N.H. to take a shower due to her having urinated on herself, but he continued to open the shower curtain to interrogate her about Moore. While N.H. was in the shower, McCaster waved and pointed a Glock handgun at her face. N.H. believed the handgun was loaded and that McCaster might shoot her.

[6] When N.H. exited the shower and returned to the bedroom to dress herself and their son, McCaster struck her above the eyebrow with the handgun, punched her in the temple, and bit her on the face. The three-year-old tried to calm McCaster by hugging him around the legs, but McCaster told the boy to just “go sit back down.” Id. at 219. After N.H. saw that McCaster was using her phone and “was texting someone,” N.H. “took that opportunity” to flee the apartment and go to the police station. Id. at 220.

[7] Lafayette Police Officer Jason Schatzer interviewed N.H. and transported her to the hospital where she was examined by Nurse Practitioner Karla Capecci (“Nurse Capecci”). Nurse Capecci observed that N.H. had a voice strain, and bruising of the eye, chin, nose, under the right earlobe, and two different areas of her back, as well as a bite mark just underneath her earlobe. On November 26, 2024, N.H. was examined by Forensic Nurse Examiner Erica Reeder. She observed bruising on N.H.’s neck, chin, lower lip, nose, right cheek, chest, shoulder, and abdomen, as well as a bite mark and petechia, which are “little circle[-]like pinpoint bruises that happen under the skin when pressure is being applied,” and consistent with N.H. being strangled. Id. at 157. A SWAT team was dispatched to the couples’ apartment where McCaster ultimately surrendered to police. McCaster was in possession of multiple cell phones, including his own and N.H.’s, and he informed police that he had numerous unloaded weapons located in a duffle bag inside the apartment.

[8] On November 26, 2024, the State charged McCaster with Count I, domestic battery by means of a deadly weapon as a level 5 felony, Count II, intimidation as a level 5 felony, Count III, strangulation as a level 6 felony, Count IV, domestic battery as a level 6 felony, Count V, intimidation as a level 6 felony, Count VI, criminal recklessness as a level 6 felony, and Count VII, domestic battery as a class A misdemeanor. On June 10, 2025, the State also charged McCaster with Count VIII, pointing a firearm as a level 6 felony, and Count IX, aggravated battery as a level 3 felony.

[9] A jury trial began on August 18, 2025. The jury found McCaster guilty as charged. The court held a sentencing hearing on September 22, 2025. In its written sentencing order, the court merged Counts IV and VII with Count I. The court also merged Counts V, VI, and VIII with Count II. The court entered judgment of conviction on Counts I, II, III, and IX and dismissed the remaining counts. The court sentenced McCaster to four years each on Counts I and II, two years on Count III, and twelve years on Count IX. The court ordered that the sentences on Counts II and III be served concurrently with the sentence on Count IX and the sentence on Count I to be served consecutively thereto, for an aggregate sentence of sixteen years. The court ordered that McCaster serve fourteen years executed in the Department of Correction with two years suspended to probation.

Discussion

I.

[10] McCaster contends that his convictions for strangulation and aggravated battery violate Indiana's prohibition against double jeopardy. We review double jeopardy claims de novo. McGuire v. State, 263 N.E.3d 745, 749 (Ind. Ct. App. 2025), trans. denied. Where, as here, the claim involves a single criminal transaction that violates multiple statutes with common elements, we apply the analysis laid out in Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020). Id.

[11] The first step in Wadle requires us to examine the statutory language to determine “[i]f the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication[.]” Wadle, 151 N.E.3d at 248. The offense under Count III, strangulation as a level 6 felony, is governed by Ind. Code § 35-42-2-9(c), which provides that “a person who, in a rude, angry, or insolent manner, knowingly or intentionally: (1) applies pressure to the throat or neck of another person; ․ in a manner that impedes the normal breathing or the blood circulation of the other person commits strangulation, a Level 6 felony. The offense under Count IX, aggravated battery as a level 3 felony, is governed by Ind. Code § 35-42-2-1.5, which provides that “a person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death ․ commits aggravated battery, a Level 3 felony.” Both parties concede that neither statute clearly permits multiple punishments.

[12] With no statutory language clearly permitting multiple convictions, the second Wadle step requires analyzing the offenses charged under our included-offense statutes. See Wadle, 151 N.E.3d at 254. In addressing the second step, the Indiana Supreme Court has stated that “ ‘[i]f 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.” A.W. v. State, 229 N.E.3d 1060, 1067 (quoting Wadle, 151 N.E.3d at 248). The A.W. Court also held:

Wadle does not define the meaning of “as charged.” See 151 N.E.3d at 248. But this phrase makes more sense when analyzed at Step 2 within the factually included inquiry. These two concepts—as charged and factually included—should be treated as synonymous under Wadle: “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. at 251 n.30 (quoting Young [v. State, 30 N.E.3d 719, 724 (Ind. 2015)] (cleaned up)).

But that leaves us with another open question about the scope of the factually included inquiry at Step 2. We conclude that when assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument. 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. Step 2 has core constraints: it does not authorize courts to probe other facts, such as evidence adduced from trial. Cf. Phillips [v. State, 174 N.E.3d 635, 647 (Ind. Ct. App. 2021)]. The factually included inquiry at this step is thus limited to facts on the face of the charging instrument. Otherwise, Step 2 would be another formulation of the now-retired Richardson approach. Richardson’s “either/or” regime was rejected because it gave courts options, which thus led to a selective application of “one test over another.” Wadle, 151 N.E.3d at 241. Using their discretion, courts typically focused on actual evidence rather than the statutory elements, which led to a mélange of inconsistency.

* * * * *

Inconsistency breeds confusion, and confusion imperils the rule of law. In addressing this axiom, Wadle attempted to combat any potential legitimacy concerns by restoring order to Indiana's double jeopardy jurisprudence: it focused on the included-offense statute. See 151 N.E.3d at 235. Wadle thus assigned the “underlying” factual inquiry—which includes evidence from trial—to Step 3. Id. at 249. In other words, Step 3 is authorized, but only if one offense is included in the other under Step 2. Wadle contains clear stopping points in its analytical sequence: if Step 2 is not met, the analysis ends. We thus conclude that courts must confine their Step 2 analysis to (1) the included-offense statute (whether the offenses are “inherently” included), and (2) the face of the charging instrument (whether the offenses “as charged” are factually included).

Id. at 1067-1068. The Court stated that “Step 2 does not allow courts to examine evidence adduced at trial, but only facts presented in the charging instrument, including the ‘means used.’ ” Id. at 1068-1069 (quoting Wadle, 151 N.E.3d at 251 n.30). The Court held that “where ambiguities exist in a charging instrument about whether one offense is factually included in another, see Harris [v. State, 186 N.E.3d 604 (Ind. Ct. App. 2022)], courts must construe those ambiguities in the defendant's favor, and thus find a presumptive double jeopardy violation at Step 2,” and, “[i]n this event, the State can later rebut this presumption at Step 3.” Id. at 1069.

[13] Ind. Code § 35-38-1-6 provides that “[w]henever: (1) a defendant is charged with an offense and an included offense in separate counts; and (2) the defendant is found guilty of both counts; judgment and sentence may not be entered against the defendant for the included offense.” Ind. Code § 35-31.5-2-168 provides:

“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.

None of these are true here. The strangulation statute includes an element that the aggravated battery statute does not: the defendant must apply pressure to the throat or neck of another person “in a manner that impedes the normal breathing or the blood circulation of the other person.” Ind. Code § 35-42-2-9(c). And the aggravated battery statute includes an element that the strangulation statute does not: that the defendant “inflicts injury on a person that creates a substantial risk of death.” Ind. Code § 35-42-2-1.5. Therefore, neither offense is inherently included in the other. See Baker v. State, 223 N.E.3d 1142, 1147 (Ind. Ct. App. 2023) (holding that neither the offense of strangulation nor domestic battery are inherently included in the other as each offense includes an element the other does not).¹

[14] McCaster suggests that, although the offense of strangulation is not inherently included in the offense of aggravated battery, “strangulation--in this case, as charged,” is a lesser included offense of aggravated battery. Appellant's Brief at 19. The A.W. Court held: “[W]hen assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument. This includes examining the ‘means used to commit the crime charged,’ which must ‘include all of the elements of the alleged lesser included offense.’ ” A.W., 229 N.E.3d at 1067 (quoting Wadle, 151 N.E.3d at 251 n.30). In Count III, strangulation, the State alleged that “[o]n or about November 25, 2024, ․ McCaster in a rude, insolent or angry manner, did knowingly or intentionally apply pressure to the throat or neck of [N.H.] in a manner that impeded normal breathing or blood circulation ․” Appellant's Appendix Volume II at 10. In Count IX, aggravated battery, the State alleged that “[o]n or about November 25, 2024, ․ McCaster did knowingly or intentionally inflict injury on [N.H.] that created a substantial risk of death ․” Id. at 16.

[15] McCaster argues that the “lack of specific facts” in the aggravated battery charging information rendered it ambiguous and “makes it entirely conceivable that the strangulation was the means used to commit the greater offense of aggravated battery.” Appellant's Brief at 16. We must agree. Because of the way the aggravated battery information was drafted, specifically the lack of factual detail, one cannot necessarily tell whether the means used to commit the aggravated battery was something other than the charged strangulation. That is to say, it is entirely possible on the face of this charging information that the inflicted injury that created a substantial risk of death alleged in Count IX was in fact the act of strangulation alleged in Count III. This ambiguity creates a rebuttable presumption of a substantive double-jeopardy violation. A.W., 229 N.E.3d at 1070.

[16] Thus, we proceed to Step 3 of Wadle and give the State the opportunity to rebut the presumptive double-jeopardy violation. Regarding the Step 3 analysis, the Wadle Court explained:

Once a court has analyzed the statutory offenses charged, it must then examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. Bigler [v. State, 602 N.E.2d 509, 521 (Ind. Ct. App. 1992), reh'g denied, trans. denied]. Based on this information, a court must ask 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.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010), [reh'g denied,] cited with approval by [Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015)].

151 N.E.3d at 249 (footnotes omitted). Thus, Step 3 of Wadle requires an examination of “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 facts show two separate and distinct crimes, there's no violation of substantive double jeopardy[.]” Wadle, 151 N.E.3d at 249.

[17] To accomplish Step 3, “we must first identify which of the defendant's actions to analyze,” Easter v. State, (filed May 4, 2026), Ind. App. No. 25A-CR-1229, slip op. at 21, and require the State to “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, 1078-1079 (Ind. Ct. App. 2024) (quoting A.W., 229 N.E.3d at 1071), trans. denied. “Failure to hold the State to this standard would render Step 2's presumption of double jeopardy largely without meaning.” Easter, slip op. at 21.

[18] On appeal, the State attempts to rebut the presumption of double jeopardy as to Count III, strangulation, and Count IX, aggravated battery, by claiming that McCaster “choked N.H. three or four times over the course of about two hours” and that N.H.’s testimony “reveals that while two instances of McCaster choking her elevated to the level of causing substantial risk of death ․ at least one instance was not that severe.” Appellee's Brief at 15. The State further contends, “these instances of choking were sufficiently separated in time and purpose that the victim ․ was able to distinguish between them” and “[t]he State also sufficiently identified how each offense was distinct at trial.” Id.

[19] But we cannot say that the State made this distinction clear to the fact finder. Although the evidence indeed indicates that McCaster choked N.H. “three or four” times over the course of two hours, and that “two of the times” that McCaster was choking her, N.H. involuntarily urinated on herself due to the severity of those acts of strangulation, Transcript Volume II at 216, the prosecutor presented these facts to the jury as a “single undifferentiated narrative” in support of both the strangulation charge and the aggravated battery charge. Easter, slip op. at 22. First, as to the offense of strangulation, the prosecutor argued during closing argument that the jury could infer McCaster's intent from the fact that he “repeated this again and again.” Transcript Volume III at 61. The State then blended the multiple acts of strangulation with the element of aggravated battery requiring the infliction of injury on a person that creates a substantial risk of death. Specifically, when discussing aggravated battery and its requirement that McCaster inflicted injury on N.H. that created a substantial risk of death, the prosecutor directed the jury to N.H.’s testimony that McCaster “strangled her three to four times,” and then noted that “[s]he has strangulation injuries. The petechia from that strangulation and the injury created a substantial risk of death.” Id. at 65. The prosecutor further blended all of the acts of strangulation together by simply broadly referencing “the lethality of strangulation,” that death “can be the result of strangulation,” and that N.H. “almost died that morning.” Id. In sum, our review of the record reveals that the prosecutor wanted the jury to find that all three or four acts of strangulation were a part of a single transaction creating a substantial risk of death that supported a finding that McCaster was guilty of aggravated battery.

[20] “To find that the State rebutted the presumption of double jeopardy at Step 3 of the Wadle analysis, we must be convinced that the factfinder could have—and did—credit distinct actions by the defendant as supporting each of the challenged offenses.” Easter, slip op. at 22 (citing A.W., 229 N.E.3d at 1071 and Ratliff, 242 N.E.3d at 1078-1079). Here, neither evidence nor argument made clear at trial that McCaster's strangulation and aggravated battery were two separate and distinct offenses. The State therefore cannot rebut the presumption of double jeopardy.

[21] As the State has failed to meet its burden to rebut the presumption of double jeopardy as to Count III, strangulation, and Count IX, aggravated battery, McCaster's conviction on Count III is contrary to law. We therefore reverse the level 6 felony strangulation conviction and remand for vacation of that conviction and its accompanying two-year concurrent sentence.

II.

[22] McCaster asserts that remand is also necessary because “the trial court erred by merging several of [his] convictions rather than vacating them.” Appellant's Brief at 20. He observes that, in its sentencing order, the trial court indicated that it merged Count IV, domestic battery, and Count VII, domestic battery, with Count I, domestic battery by means of a deadly weapon. The court further indicated that it merged Count V, intimidation, Count VI, criminal recklessness, and Count VIII, pointing a firearm, with Count II, intimidation. He cites our opinion in Kovats v. State, 982 N.E.2d 409, 414-415 (Ind. Ct. App. 2013), for the proposition that “[m]erging the offenses is not sufficient to remedy any double jeopardy concerns. Rather, vacation of the offenses is required.” Appellant's Brief at 20. The State responds that remand is unnecessary here because “the trial court did not enter a judgment of conviction on the merged charges.” Appellee's Brief at 16.

[23] The State is correct that, “[i]f a trial court does not formally enter a judgment of conviction on a [finding] of guilty, then there is no requirement that the trial court vacate the ‘conviction’ and merger is appropriate.” Bass v. State, 75 N.E.3d 1100, 1102 (Ind. Ct. App. 2017) (quoting Kovats, 982 N.E.2d at 414). The record here reveals that the trial court did not formally enter judgment of conviction on the merged counts, and McCaster was not sentenced for those counts. Indeed, merger of the counts was by express agreement of the parties prior to sentencing, and the court's written sentencing order indicates that judgment of conviction was entered only on Counts I, II, III, and IX, and that the merged charges were “dismissed” on “motion of the State.” Appellant's Appendix Volume II at 30.² Accordingly, we find no error on this issue.

[24] For the foregoing reasons, we reverse and remand to the trial court with instructions to vacate McCaster's conviction on Count III and its corresponding sentence.

[25] Reversed and remanded.

FOOTNOTES

1.   We observe that although the Baker Court also found that the offense of strangulation was not factually included as charged in the offense of domestic battery due to lack of specificity in the charging information, 223 N.E.3d at 1147, Baker was decided prior to the Indiana Supreme Court's opinion in A.W.

2.   We observe that both the Chronological Case Summary and the Abstract of Judgment list “Finding of Guilty” as the disposition for Counts I, II, III, and IX, and “Conviction Merged” as the disposition for each of the merged offenses. Appellant's Appendix Volume II at 5, 31. If the record were otherwise silent, we would say that merging “convictions” was not enough to resolve any double jeopardy concern. However, as stated above, the court's sentencing order makes clear that the court neither formally entered judgment of conviction nor sentenced McCaster on the merged counts and that those counts were explicitly dismissed. See Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (noting that “a merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a sentence, is ‘unproblematic’ as far as double jeopardy is concerned”).

Brown, Judge.

Altice, J., and DeBoer, J., concur.