ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kenneth R. Martin Steve Carter
Goshen, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
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In the
Indiana Supreme Court
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No. 20S03-0612-CR-529
CHAD E. STRONG, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
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Appeal from the Elkhart Superior Court, No. 20D03-0407-FA-125
The Honorable George W. Biddlecome, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 20A03-0602-CR-69
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July 24, 2007
Dickson, Justice.
In this case, the State acknowledges the defendant's claim that his two convictions violate
double jeopardy principles, but the parties disagree on the proper remedy.
The defendant, Chad E. Strong, was convicted for the murder of his girlfriend's three-
year-old daughter and neglect of a dependent resulting in the same child's death, as a class A fel-
ony. He was sentenced to consecutive terms of sixty-five years for murder and fifty years for
class A felony neglect. His direct appeal raises issues of prosecutorial misconduct, admission of
autopsy photographs, double jeopardy, and sentence appropriateness. By memorandum deci-
sion, the Court of Appeals rejected all his claims except double jeopardy, on which the court re-
manded with instructions to reduce the defendant's class A felony neglect conviction to a class B
felony and to impose twenty years thereon, to be served consecutive to his murder sentence. The
defendant asserts that this reduction fails to cure the double jeopardy violation.
As to his claim of double jeopardy, the defendant's appeal contends that his conviction of
neglect of a dependant was elevated to a class A felony based upon the same bodily injury that
formed the basis of his murder conviction. To resolve the claimed double jeopardy violation, the
defendant requests that one of the two offending convictions be reduced to a less serious form.
The State acknowledges that the "convictions for murder and neglect of a dependent causing
death may violate double jeopardy principles because they are premised on the same death," Ap-
pellee's Br. at 13, and urges a remedy reducing the neglect conviction from a class A to a class B
felony.
Under the rules of statutory construction and common law that constitute one aspect of
Indiana's double jeopardy jurisprudence, where one conviction "is elevated to a class A felony
based on the same bodily injury that forms the basis of [another] conviction, the two cannot
stand." Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002) (citing Richardson v. State, 717 N.E.2d
at 55 (Sullivan, J., concurring), 57 (Boehm, J., concurring in result)). This circumstance was ar-
ticulated in Justice Sullivan's concurring opinion in Richardson as the "[c]onviction and punish-
ment for an enhancement of a crime where the enhancement is imposed for the very same behav-
ior or harm as another crime for which the defendant has been convicted and punished." Rich-
ardson, 717 N.E.2d at 56 (emphasis added). To remedy a double jeopardy violation, a court may
reduce the sentencing classification on one of the offending convictions. See, e.g., Logan v. Sta-
te, 729 N.E.2d 125, 137 (Ind. 2000); Richardson, 717 N.E.2d at 54.
The murder count charged that the defendant knowingly killed Taranova Glick. The
count charging neglect of a dependant resulting in death, as a class A felony, alleged that the de-
fendant, who had care of three-year-old Taranova Glick as a dependant, knowingly placed her
"in a situation endangering her life or health," allowing her "to languish and suffer without medi-
cal treatment knowing she had been gravely injured, all of which resulted in the death of
Taranova Glick." Appellant's App'x at 14A. The offense of neglect of a dependant, absent a re-
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sulting injury, is defined as a class D felony. Ind. Code § 35-46-1-4(a). But it is a class C felony
when it "results in bodily injury" or "consists of cruel or unusual confinement or abandonment,"
a class B felony when it "results in serious bodily injury," and a class A felony when it "results in
the death of a dependent who is less than fourteen (14) years of age." Ind. Code §§ 35-46-1-
4(b)(1)–4(b)(4) (emphasis added).
Recognizing that the defendant's convictions "may violate double jeopardy principles be-
cause they are premised on the same death," Appellee's Br. at 13, the State asserts that the viola-
tion may be adequately addressed by reducing the neglect count from a class A to a class B fel-
ony. It argues that the murder and neglect convictions "were based on two completely different
sets of actions as the murder happened when [d]efendant placed his knee into Taranova's abdo-
men and the neglect happened thereafter when he did not seek medical attention." Id. at 14.
Such a recharacterization of the charges, however, does not eliminate the fact that both
charged offenses would still be based on the same bodily injury. The injuries urged to support
the "serious bodily injury" necessary for class B neglect are the same injuries, the same harm,
that resulted in the child's death and are the basis of the murder charge. Addressing the double
jeopardy violation on appeal by changing the resulting harm from "death" to "serious bodily in-
jury" or "bodily injury," does not change the fact that the charge of neglect of a dependent is
predicated in this case on the same bodily injury on which the murder charge is based. For this
reason, appellate modification of the conviction for neglect of a dependent from a class A of-
fense to a class B or class C offense is insufficient to remedy the double jeopardy violation.
Only when deemed a class D offense, which does not include any element of bodily injury, does
the conviction of neglect of a dependent satisfy the common law/statutory construction aspect of
Indiana's double jeopardy jurisprudence.
The trial court found the sentencing factors warranted the imposition of maximum, con-
secutive sentences for murder and class A felony neglect. We likewise conclude that for his re-
vised conviction of class D felony neglect, the appropriate sentence is the maximum authorized
sentence, three years, to be served consecutively with the sentence for murder. See Pierce, 761
N.E.2d at 830 n.5; Cutter v. State, 725 N.E.2d 401, 410 n.4 (Ind. 2000). As to the issues other
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than double jeopardy, we summarily affirm the decision of the Court of Appeals. Ind. Appellate
Rule 58(A).
The defendant's conviction and sentence for murder is affirmed. But we remand to the
trial court to reduce the conviction for neglect of a dependant from a class A felony to a class D
felony, for which the sentence shall be a term of three years, to be served consecutively to the
sentence for murder.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
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