¶1dissenting.
¶2Again we consider whether Double Jeopardy is a decisive factor in a single criminal trial involving multiple convictions. It is my conclusion that Double Jeopardy does not bar Blanton’s convictions for prostitution and public indecency.
¶3In Ohio v. Johnson (1984), 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425, Justice Rehnquist observed that;
“In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy — protection against cumulative punishments — is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Be*192cause the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent.”
¶4Id.467 U.S. at 499, 104 S.Ct. at 2540 (citations omitted). In Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed. 2d 535, the Supreme Court developed the same theme when it held that in the context of multiple punishments imposed in a single trial, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Id.459 U.S. at 366, 103 S.Ct. at 678. In light of legislative intent to impose multiple punishments for the use of a weapon in the perpetration of a felony, the Court reinstated convictions for first degree robbery and for armed criminal action, even though the convictions constituted the “same offense” under traditional analysis. Id.
¶5In the absence of legislative intent to the contrary, it must be presumed that the legislature did not intend to permit multiple punishments for the same offense. Id.It thus becomes essential to determine whether two statutes proscribe the same offense. For the purpose of discerning whether two statutes proscribe the same offense, we are inevitably led to the Blockburger test. Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, cited in Missouri v. Hunter, supra.The Block-burger test bears repeating:
“Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
¶6Blockburger, supra,284 U.S. at 304, 52 S.Ct. at 182. In this context, the Blockburger test is a rule of statutory construction. Albernaz v. United States (1981), 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275. As Justice Rehnquist has observed, “the Blockburgertest itself could be viewed as nothing but a rough proxy for such analysis [of legislative history], since, by asking whether two separate statutes each include an element the other does not, a court is really asking whether the legislature manifested an intention to serve two different interests in enacting the two statutes.” Whalen v. United States (1980), 445 U.S. 684, 713-14, 100 S.Ct. 1432, 1449, 63 L.Ed. 2d 715 (Rehnquist, J., dissenting).
¶7In the present case, Blanton was convicted of both prostitution, a class D felony, and public indecency, a class A misdemean- or, for a single, public act of fellatio performed on a paying customer. Blanton’s two convictions for a single act thus invite inquiry regarding whether the legislature intended to permit multiple punishments. No other legislative policy appearing, we can only apply the Blockburgertest.
¶8Blanton’s actions violate two statutes, both of which require proof of an additional element. Blanton knowingly performed an act of deviate sexual conduct, i.e., fellatio, for money, thus supplying the evidentiary elements of prostitution. IC 35-45-4-2 (here elevated to a class D felony for prior prostitution convictions). The same act of deviate sexual conduct was performed in a public place, thus satisfying the separate requirements of public indecency. IC 35-45-4-1. The payment of money was not a fact required for proof of public indecency, nor was the public nature of the sexual act required in order to prove prostitution. The conclusion seems inescapable that, under the Blockburgertest, the two crimes did not constitute the “same offense,” and the multiple punishments imposed here are not prohibited by the Double Jeopardy Clause. There is an additional element for each of the charged offenses.
¶9I fail to see how this court can ignore the clear import of Blockburgerand Missouri v. Hunter. We are bound by these decisions. Both convictions should be affirmed.