Lyndon Vaughn, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Lyndon Vaughn appeals following his convictions for one count of child molesting, as a Level 1 felony, and two counts of child molesting, as Level 4 felonies. Vaughn raises one issue for our review, namely, whether his convictions for the Level 1 felony and one Level 4 felony violate the prohibition against double jeopardy. We affirm.

Facts and Procedural History

[2] Vaughn is the grandfather of Child Victim 1 and Child Victim 2, who are cousins. When Child Victim 1 was nine or ten years old, Vaughn lived with her and her mother, Adult Witness 1. On ten occasions, Vaughn entered Child Victim 1's bedroom and touched her vagina. There were times “that his hands were on [her] underwear” and there were times when “his hand would go under [her] underwear” and “he would put his fingers into the opening of [her] vagina[.]” Tr. at 35-36. Child Victim 1 ultimately confided in Child Victim 2's sister, who reported it to her mother, who then reported it to Adult Witness 1. Adult Witness 1 and Child Victim 2's mother called the police. Child Victim 2 then disclosed to her mother that Vaughn had “rubb[ed]” her buttocks on one occasion when she was eleven or twelve years old. Id. at 80.

[3] The State charged Vaughn with one count of child molesting, as a Level 1 felony, and two counts of child molesting, as Level 4 felonies. In Count 1, the Level 1 felony count, the State alleged that Vaughn had knowingly or intentionally performed or submitted to other sexual conduct with Child Victim 1. See Appellant's App. Vol. 2 at 15. In Count 2, the State alleged that Vaughn had performed or submitted to fondling or touching with Child Victim 1, with the intent to arouse or satisfy the sexual desires of Vaughn or Child Victim 1. See id. And, in Count 3, the State alleged that Vaughn had performed or submitted to fondling or touching of Child Victim 2, with the intent to arouse or satisfy the sexual desires of Vaughn or Child Victim 2. See id.

[4] Following a bench trial, the court found Vaughn guilty as charged. Then, after a sentencing hearing, the court sentenced Vaughn to thirty years on Count 1, six years on Count 2, and seven years on Count 3. The court then ordered the sentence on Count 2 to run concurrently with the Level 1 felony sentence but ordered the sentence on Count 3 to run consecutive to Count 1, for an aggregate sentence of thirty-seven years in the Department of Correction. This appeal ensued.

Discussion and Decision

[5] Vaughn contends that his convictions for Counts 1 and 2 violate the prohibition against double jeopardy.¹ We review such questions de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).

[6] As we have previously explained:

Our Supreme Court has recognized that substantive double jeopardy claims arise in two principal contexts: (1) when a single criminal act or transaction violates a single statute but results in multiple injuries/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)]; Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020). The Court's decision in Wadle addressed the latter scenario, and its decision in Powell addressed the former scenario. See Stone v. State, 226 N.E.3d 829, 832 (Ind. Ct. App. 2024), trans. denied. “In either circumstance, the dispositive question is one of statutory intent.” Wadle, 151 N.E.3d at 247.

Thompson v. State, 246 N.E.3d 1251, 1254 (Ind. Ct. App. 2024).

[7] Vaughn's convictions were for violating two subsections of the child molesting statute. That statute provides, in pertinent part:

(a) A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to ․ other sexual conduct ․ commits child molesting, a Level 3 felony. However, the offense is a Level 1 felony if

(1) it is committed by a person at least twenty-one (21) years of age[.]

* * *

(b) A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or satisfy the sexual desires of either the child or the older person, commits child molesting, a Level 4 felony[.]

Ind. Code § 35-42-4-3.

[8] Subsection (a) of the child molesting statute incorporates by reference Indiana Code § 35-31.5-2-221.5. That statute, in turn, defines “other sexual conduct” to mean “an act involving: (1) a sex organ of one ․ person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.” I.C. § 35-31.5-2-221.5. A finger qualifies as an “object” in this context. Seal v. State, 105 N.E.3d 201, 209 (Ind. Ct. App. 2018).

[9] Here, both parties agree that the Wadle test applies.² Wadle

requires a multi-step analysis. We first look to the statutory language of the offenses to determine whether the language clearly permits multiple punishments, either expressly or by implication. If multiple punishments are not clearly permitted, we turn to the included-offense statute, Ind. Code § 35-31.5-2-168, to determine whether either offense is included (inherently or factually) in the other. If neither is included in the other, the analysis ends—full stop as there is no violation of double jeopardy. Otherwise, we move to the third step and probe the underlying facts—as presented in the charging instrument and adduced at trial—to determine 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.

Thompson, 246 N.E.3d at 1255 (citation modified).

[10] “Neither subsection (a) nor subsection (b) of the Child Molesting Statute clearly permits multiple punishments for multiple acts of molestation.” Carranza v. State, 184 N.E.3d 712, 716 (Ind. Ct. App. 2022). Thus, we turn to our included-offense statute. Indiana Code Section 35-31.5-2-168 defines “included offense” as 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;

(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.

[11] Our included-offense statute is not implicated here because child molesting under subsection (a) of the child molesting statute is not established by proof of child molesting under subsection (b) and vice versa. Unlike subsection (a), subsection (b) does not require proof of “other sexual conduct.” And, unlike subsection (b), subsection (a) does not require proof of fondling or touching. Further, Vaughn was not convicted of an attempt crime, and subsections (a) and (b) of the child molesting statute differ in respects other than degree of harm or culpability.

[12] Still, a court must also consider whether the offenses are included as charged. For this test, “a court may examine only the facts as presented on the face of the charging instrument.” A.W., 229 N.E.3d at 1067 (bold removed). If ambiguities exist in the charging information about whether one offense is factually included in the other, “courts must construe those ambiguities in the defendant's favor, and thus find a presumptive double jeopardy violation at Step 2.” Id. at 1069.

[13] The State agrees that the “charging information is ambiguous about the means that [Vaughn] used to commit his crimes.” Appellee's Br. at 11. Indeed, the charging information alleged in Count 1 that Vaughn, a person of at least twenty-one years of age, “did knowingly or intentionally perform or submit to other sexual conduct” with Child Victim 1. Appellant's App. Vol. 2 at 15. And, in Count 2, the State alleged that Vaughn, “did perform or submit to fondling or touching” with Child Victim 1 “with the intent to arouse or satisfy the sexual desires of” either himself or Child Victim 1. Id. The State acknowledges that “the means used to commit the Level 1 felony theoretically could have included all the elements of the Level 4 felony.” Appellee's Br. at 11. We agree that the charging information is ambiguous. We are required to resolve the ambiguities in Vaughn's favor and find a presumptive double jeopardy violation at Step 2. We therefore turn to the third step under Wadle.

[14] In this final step, a court may consider “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 (quotation marks omitted). If the underlying facts reveal the two offenses are indeed separate, “there is no Wadle violation, even if one offense is, by definition, included in the other.” Id. (quotation marks omitted).

[15] Based on the facts adduced at the trial, we conclude that Vaughn committed multiple offenses. Indeed, the evidence presented demonstrated that Vaughn molested Child Victim 1 on ten occasions. On some occasions, Vaughn would place his hand “on” Child Victim 1's underwear.³ Tr. at 35. On other occasions, he would place his hand “under” her underwear and “put his fingers into the opening of [her] vagina.” Id. at 35-36. Those offenses were not so compressed in terms of time or continuity of action as to constitute a single transaction, and, as a result, there is no double jeopardy violation. We therefore affirm his convictions.

[16] Affirmed.

FOOTNOTES

1.   The State contends that Vaughn invited any error because, at sentencing, he did not ask the court to vacate one of his convictions but rather asked the court to sentence him to a “minimum sentence of 20 years DOC on the counts with” Child Victim 1. Tr. at 132. We do not find this one statement to be evidence “of a deliberate, well-informed trial strategy,” which is required to establish invited error. Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019). Rather, we find it to be, at best, a mere acquiescence to his convictions, and we are reluctant to find invited error based on mere acquiescence when there is no evidence of counsel's strategic maneuvering. See id. We therefore address the merits of Vaughn's claim.

2.   Our Court has held that the Wadle test applies in child molest cases “where multiple convictions were based on separate provisions of the same statute.” Thompson, 246 N.E.3d at 1254.

3.   Vaughn contends that the “evidence here did not establish a discrete act of fondling or touching apart from the conduct supporting the penetration conviction.” Appellant's Br. at 10. To support that assertion, Vaughn relies on a select portion of Child Victim 1's testimony where she responded affirmatively when asked if Vaughn would always put his fingers in her vagina or if he would sometimes just touch the outside. See Tr. at 36. However, Vaughn ignores Child Victim 1's testimony where she specifically stated that sometimes his fingers would be on her underwear and other times his fingers would penetrate her vagina.

Bailey, Judge.

Bradford, J., and Altice, J., concur.