Court of Appeals of Indiana | Memorandum Decision 49A02

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### MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT

Suzy St. John

Indianapolis, Indiana A TTORNEYS FOR A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

William Craven,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff. October 29, 2015

Court of Appeals Case No.

49A02

- 1502

- CR

- 107

Appeal from the Marion Superior

Court

The Honorable Amy M. Jones,

Judge

Trial Court Cause No.

49F08

- 1405

- CM

26546

Riley, Judge.Court of Appeals of Indiana | Memorandum Decision 49A02

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### STATEMENT OF THE CASE

[1] Appellant

- Defendant, William Craven (Craven), appeals his conviction for

Count I, operating a vehicle while intoxicated in a manner that endangers a

person, a Class A misdemeanor, Ind. Code § 9

- 30

- 5

- 2(b); and Count II,

operating a vehicle with an alcohol concentration of at least 0.08% but less than

0.15%, a Class C misdemeanor, I.C. § 9

- 30

- 5

- 1(a).

[2] We affirm in part, reverse in part, and remand.



### ISSUE

[3] Craven raises one issue on appeal, which we restate as follows: Whether

Craven’s conviction for two Counts of driving while intoxicated, one as a Class

A misdemeanor and the other as a Class C misdemeanor, violates Indiana

Code section 35

- 38

- 1

- 6.



### FACTS AND PROCEDURAL HISTORY

[4] Shortly before 3:00 a.m. on December 28, 2013, Erika Wells (Wells) was

awakened by a loud noise. When she went to her bedroom window to

investigate, Wells observed a vehicle “doing donuts in the parking lot” of the

nearby golf course clubhouse. (Tr. p. 6). Wells continued watching from her

window as the vehicle

— a red GMC pickup truck

— pulled out of the parking lot

and traveled “really fast down the road, hit an embankment and flipped upside

down in [her] neighbor’s backyard.” (Tr. pp. 6

- 7). Wells ran outside to check

on the vehicle’s occupants while another neighbor reported the accident to theCourt of Appeals of Indiana | Memorandum Decision 49A02

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Craven as the driver of the vehicle.

[5] A short time later, IMPD Officer Clinton Ellison (Officer Ellison) arrived on

the scene and observed Craven, who had some minor bleeding and appeared to

be in pain, sitting on the ground next to the overturned truck. Craven’s

passenger was standing nearby. Officer Ellison inquired about the cause of the

accident, and Craven answered “that he was being stupid, that he was driving

too fast, lost control and the crash occurred.” (Tr. p. 25). During their

interaction, Officer Ellison detected the odor of alcohol on Craven’s breath and

also noticed that Craven’s eyes were bloodshot and his speech was slurred.

When asked, Craven admitted that he had consumed alcoholic beverages. Due

to Craven’s injuries, Officer Ellison was unable to conduct field sobriety tests.

Craven was transported to the hospital, where a chemical blood test was

performed which revealed that Craven’s blood alcohol content (BAC) was

within the range of 0.13% to 0.14%. As a result of the accident, Craven

sustained “substantial internal injuries.” (Tr. p. 31).

[6] On May 21, 2014, 1 the State filed an Information, charging Craven with Count

I, operating a vehicle while intoxicated in a manner that endangered a person, a

Class A misdemeanor, I.C. § 9

- 30

- 5

- 2(b); and Count II, operating a vehicle with

a BAC equivalent to at least 0.08% but less than 0.15%, a Class C

1 Although the Chronological Case Summary states that the case was filed on May 21, 2014, the file stamp

on the Information indicates that the filing date was May 12, 2014.Court of Appeals of Indiana | Memorandum Decision 49A02

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- 30

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- 1(a). On January 29, 2015, the trial court

conducted a bench trial and, at the close of the evidence, found Craven guilty on

both Counts. Immediately following its judgment, the trial held a

sentencing hearing. On Count I, the trial court imposed 365 days of probation,

with 275 days suspended and 90 days executed on home detention through

Community Corrections. The trial court stipulated that if Craven completed his

mandatory substance abuse evaluation and treatment and paid his fees prior to

the expiration of the probationary period, his probation would terminate early.

As to Count II, the trial court ordered a concurrent sentence of 90 days

executed on home detention through Community Corrections.

[7] Craven now appeals. Additional facts will be provided as necessary.



### DISCUSSION AND DECISION

[8] Craven claims that his conviction for both Counts of operating while

intoxicated runs afoul of the double jeopardy principles embodied in Indiana

Code section 35

- 38

- 1

- 6. 2 Specifically, Craven contends that operating a vehicle

with a BAC of at least 0.08% but less than 0.15%, a Class C misdemeanor, is a

lesser included offense of operating a vehicle while intoxicated in a m anner that

endangers a person, a Class A misdemeanor. Therefore, he argues that his

2 Craven does not present a double jeopardy argument based upon the United States or Indiana

Constitutions; rather, he “relies solely upon a statutory double jeopardy argument.” Parks v. State

, 734

N.E.2d 694, 701 n.9 (Ind. Ct. App. 2000), trans. denied

.Court of Appeals of Indiana | Memorandum Decision 49A02

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- 107 | October 29, 2015 Page 5 of 6 conviction and sentence on the lesser offense must be vacated. The State agrees

with Craven.

[9] Indiana Code section 35

- 38

- 1

- 6 provides that if “a defendant is charged with an

offense and an included offense in separate counts[] and

. . . is found guilty of

both counts[,] judgment and sentence may not be entered against the defendant

for the included offense.” This is because a conviction of both an offense and

its lesser included offense is tantamount “to convicting a defendant twice for the

same conduct.” Parks

, 734 N.E.2d at 701. Our court has previously

determined that “an offense is a lesser included offense if it differs from another

only in the respect that a less serious

. . . risk of harm

. . . to the public interest

.

. . is required to establish its commission.” Watson v. State

, 972 N.E.2d 378, 384

(Ind. Ct. App. 2012) (ellipsis in original) (quoting Sering v. State

, 488 N.E.2d

369, 375 (Ind. Ct. App. 1986)) (internal quotation marks omitted).

[10] Indiana’s General Assembly has classified operating a vehicle while intoxicated

in a manner that endangers a person as a Class A misdemeanor, whereas

operating a vehicle with a BAC of at least 0.08% but less than 0.15% is a Class

C misdemeanor. Thus, the legislature has clearly determined that the risk

occasioned by the intoxicated person who drives in a manner that endangers a

person is greater than the risk occasioned by the driver with a BAC of at least

0.08% but less than 0.15%. See Sering

, 488 N.E.2d at 376. “Given the disparate

classifications of the two alcohol

- related offenses, it is evident that the

legislature intended the [latter] to be a lesser

- included offense of the [former].”

Watson

, 972 N.E.2d at 384. Although “[t]he State can charge a defendant withCourt of Appeals of Indiana | Memorandum Decision 49A02

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. . . convictions for both

offenses cannot stand.” Hornback v. State

, 693 N.E.2d 81, 85 (Ind. Ct. App.

1998). Accordingly, we remand this case to the trial court with instructions to

vacate Craven’s Class C misdemeanor conviction for operating a vehicle with a

BAC of at least 0.08% but less than 0.15%.



### CONCLUSION

[11] Based on the foregoing, we affirm Craven’s conviction for Count I and

conclude that Craven’s conviction for Count II, operating a vehicle with a BAC

of at least 0.08% but less than 0.15%, a Class C misdemeanor, violates Indiana

Code section 35

- 38

- 1

- 6 because it is a lesser included offense of operating a

vehicle while intoxicated in a manner that endangers another person, a Class A

misdemeanor.

[12] Affirmed in part, reversed in part, and remanded.

[13] Brown, J. and Altice, J. concur