Duffy v. State3/21/1990
. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), in holding that, when the same conduct violates more than one provision of the criminal code, the State may elect which violation to charge and pursue. This is the rule of Batchelder, with the clear implication flowing from it that an attempt to punish all of the options would result in a violation of the concept of double jeopardy.
As an example of repeated violations of the same statute, in Hamill, this court held that the legislature intended to protect the victim against each identifiable sexual penetration. Consequently, even though a continuing course of conduct was involved, each sexual penetration demonstrated a separate crime. Following that case, in Baum, 745 P.2d at 882, we said:
"* * * In sequence, appellant performed fellatio upon the victim and then made the victim reciprocate. It would not be reasonable for this court to determine that these two distinct acts of fellatio were only one criminal act. We hold that the trial court was proper in handing down two separate sentences for counts II and III for which appellant was convicted."
Baum contended that avoidance of double jeopardy demanded that the acts be separated by a substantial period of time or space. In response, the court stated:
"`"Where, * * * different criminal acts are at issue, supported by different factual evidence even though separated in time only by a few seconds, one offense by definition cannot be `included' in the other. The defendants can properly be punished for , under different, or the same, statutory provisions."'" Baum, 745 P.2d at 882, quoting State v. Molitoni, Hawaii App., 711 P.2d 1303, 1306 (1985), quoting State v. Pia, 55 Haw. 14, 19, 514 P.2d 580, 584-585 (1973) (emphasis in original).
In Carter, 714 P.2d 1217, a similar analysis was pursued. The court concluded that separate evidence supported the conviction for delivery of a controlled substance and the conviction for possession with intent to deliver a controlled substance, and the legislature intended that each violation be separately punished. Accord State v. Bocian, 226 Neb. 613, 413 N.W.2d 893 (1987). We there distinguished prior cases holding that a defendant could be convicted of only one offense if the same evidence, delivery of a controlled substance, was used to support a charge that the defendant possessed the controlled substance with intent to deliver it and then demonstrated the delivery. These cases can be categorized as those in which an alternative method of violating the statute was described by the legislature. See Dycus v. State, 529 P.2d 979 (Wyo. 1974); Jackson, 522 P.2d 1356.
In those instances in which the language and purpose of the statute indicate a legislative intent to structure a single offense with alternative methods specified by which the statute may be violated, any violation of the statute is a single offense. According to the general rule, this is the result even if the evidence demonstrates that the statute has been violated in both of the alternative ways and, in such an instance, only one conviction can be sustained.
"`The rule is well settled that, where a statute makes either of two or more distinct acts, connected with the same general offense and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons or at different times, they may, when committed by the same person at the same time, be coupled in one count, as constituting altogether but one offense. In such cases the several acts are considered as so many steps or stages in the same affair, and the off
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