Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 1 of 8

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.

ATTORNEY FOR APPELLANT

A. David Hutson

Hutson Legal

Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. Mackenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Stanley Mark Harris,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 30, 2019

Court of Appeals Case No.

18A-CR-1019

Appeal from the Clark Circuit 

Court

The Honorable Joseph P. Weber, 

Judge

Trial Court Cause No.

10C03-1705-CM-844

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 2 of 8

Statement of the Case

[1] Stanley Harris (“Harris”) was convicted by a jury of Class A misdemeanor 

operating a vehicle while intoxicated (“OVWI”) causing endangerment and 

Class C misdemeanor OVWI.

1

 On appeal, Harris argues that: (1) the State 

presented insufficient evidence to establish venue; and (2) remand is necessary 

to correct the sentencing order because the trial court erred when it entered a 

judgment of conviction for the lesser-included offense of Class C misdemeanor 

OVWI and indicated that the convictions were pursuant to a plea agreement. 

Concluding that the State presented sufficient evidence to establish venue and 

that remand is necessary, we affirm in part, reverse in part, and remand to the 

trial court with instructions.

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

Issues

1. Whether the State presented sufficient evidence to establish venue.

2. Whether remand is necessary to correct sentencing order errors.

 

1

IND. CODE § 9-30-5-2.
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Facts

[3] On May 6, 2017, Indiana State Police Trooper Justin Meers (“Trooper Meers”) 

was working traffic control on U.S. 31 in southern Indiana. Trooper Meers

parked his vehicle at the base of the Second Street Bridge and was facing 

southbound observing traffic leave Kentucky and enter Indiana. Trooper Meers 

observed a Ford Taurus cross the Second Street Bridge and “enter the State of 

Indiana” on a northbound route. (Tr. 102). The vehicle drove “very far left” of 

the double yellow center line to such an extent that “half [of] the vehicle” was 

in the southbound lane. (Tr. 102). The vehicle “jerked and swerved” back into 

its lane, continued northbound on U.S. 31, and again swerved left of the center 

line just shy of a hill crest on that segment of a roadway. (Tr. 102).

[4] Trooper Meers followed the vehicle northbound on U.S. 31 onto Stansifer 

Avenue. He subsequently activated his emergency lights near a railroad bridge 

on Stansifer Avenue. The driver of the vehicle, Harris, stopped in a parking lot 

near the intersection of Stansifer Avenue and Spring Street. Trooper Meers 

made contact with Harris and “immediately smelled a very, very strong odor of 

alcohol coming from the vehicle.” (Tr. 105). 

[5] Harris informed Trooper Meers that he was coming from a bar in Louisville 

where he had consumed “several” drinks. (Tr. 106). Trooper Meers then asked 

Harris to perform two field sobriety tests, which he failed. Following the tests, 

Harris explained that he suffers from C.O.P.D. and would prefer to take a 

blood test rather than submit to a breathalyzer. Trooper Meers transported 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 4 of 8

Harris to Clark Memorial Hospital, where he subsequently refused to take the 

blood test. Harris was then arrested for OVWI and taken to the Clark County 

Jail. When asked on cross-examination why he did not obtain a search warrant 

for Harris’ blood, Trooper Meers explained that through his “training and 

experience[] [of] working [in] Clark County,” he would not be able to obtain a 

search warrant on a run-of-the-mill OVWI. (Tr. 133). 

[6] The State charged Harris with Class A misdemeanor OVWI causing 

endangerment and Class C misdemeanor OVWI. A jury trial was held on 

March 22, 2018, and Trooper Meers was the sole witness. After the State

rested, Harris motioned for a directed verdict “based upon the fact that there 

was no proof that [the offenses] occurred in Clark County, Indiana.” (Tr. 135). 

After an off-the-record discussion in chambers, the trial court denied the 

motion. Thereafter, the jury found Harris guilty of both counts. Following the 

jury verdict, the trial court noted that the Class C misdemeanor was “a lesser 

included” offense of the Class A misdemeanor. (Tr. 173). 

[7] On April 5, 2018, the trial court held a sentencing hearing. At the hearing, the 

trial court stated:

We’re here for a sentencing today. This was a result of a jury 

trial that was held previously, and the jury found Mr. Harris 

guilty of Count I, Operating a Vehicle While Intoxicated, 

Endangering a Person, which is a[n] A Misdemeanor, of course. 

Punishable by a penalty of up to $5000, one year in jail. The 

second count is a lesser included misdemeanor, C Misdemeanor, 

rather, Operating While Intoxicated.
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(Tr. 174) (emphasis added). In the “Judgment of Conviction and Sentence”

order dated the same day, the trial court entered a conviction for both offenses 

and imposed a one-year suspended sentence to probation, except ninety (90) 

days home detention. The trial court also stated:

The Court finds the Defendant pled guilty freely and voluntarily, 

with full knowledge of rights, and there was a factual basis for 

such plea(s). The Court accepts the Plea(s), finds the defendant 

guilty of (each of) the crime(s) to which the Defendant pled guilty 

and enters Judgement of Conviction for such crime(s). 

(App. Vol. 2 at 29). Harris now appeals. 

Decision

[8] Harris argues that: (1) the State presented insufficient evidence to establish 

venue; and (2) remand is necessary to correct the sentencing order. We address 

each of his contentions in turn. 

1. Venue 

[9] First, Harris argues that the State failed to present sufficient evidence to prove 

venue. Specifically, Harris argues that there was no testimony proving that the 

offense occurred in Clark County. Conversely, the State maintains that there 

was testimony from which a jury could infer that the offense occurred in Clark 

County. We agree with the State.

[10] Venue is not an element of the offense. Alkhalidi v. State, 753 N.E.2d 625, 628 

(Ind. 2001). Accordingly, the State is required to prove venue by a 
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preponderance of the evidence rather than beyond a reasonable doubt. Smith v. 

State, 835 N.E.2d 1072, 1074 (Ind. Ct. App. 2005). In other words, the State 

was required to prove that Harris more likely than not committed OVWI in 

Clark County. See Fry v. State, 990 N.E.2d 429, 448 (Ind. 2013) (explaining 

preponderance standard). Venue may be established by circumstantial 

evidence. Bryant v. State, 41 N.E.3d 1031, 1037 (Ind. Ct. App. 2015). Further, 

“the State meets its burden of establishing venue if the facts and circumstances 

permit the trier of fact to infer that the crime occurred in the given county.” 

Eckstein v. State, 839 N.E.2d 232, 233 (Ind. Ct. App. 2005).

[11] The basis of Harris’ argument is that there was insufficient evidence to establish 

venue in Clark County. Our review of the record, however, reveals testimony

from which the jury could have inferred that the instant offense did, in fact, 

occur in Clark County. At trial, Trooper Meers testified that he was on patrol 

on U.S. 31 “right at the base of the Second Street Bridge.” (Tr. 98). Trooper 

Meers then observed Harris’ vehicle enter the State of Indiana, and he followed 

it northbound on U.S. 31 onto Stansifer Avenue. After Trooper Meers 

activated his emergency lights, Harris stopped in a parking lot near the 

intersection of Stansifer Avenue and Spring Street. After two failed field 

sobriety tests and a refusal to submit to a blood test while at Clark Memorial 

Hospital, Harris was transported to the Clark County Jail. Further, when asked 

on cross why he did not obtain a search warrant for Harris’ blood, Trooper 

Meers explained that through his “training and experience[] [of] working [in] 

Clark County,” he would not be able to obtain a search warrant on a run-of-the-
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mill OVWI. (Tr. 133). We conclude that the circumstantial evidence was 

sufficient to allow the trier of fact (jurors from Clark County) to infer that the 

crimes more likely than not occurred in Clark County. 

2. Lesser-Included Offense

[12] Next, Harris argues that remand is necessary to correct the sentencing order 

because the trial court erred when it entered a judgment of conviction for the 

lesser-included offense of Class C misdemeanor OVWI and indicated that the 

convictions were pursuant to a plea agreement. The State agrees that remand is 

necessary. 

[13] INDIANA CODE § 35-38-1-6 provides that if “a defendant is charged with an 

offense and an included offense in separate counts[ ] and the defendant is found 

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

defendant for the included offense.” An offense is a lesser included “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) (quoting Sering v. State, 488 N.E.2d 369, 375 (Ind. 

Ct. App. 1986)).

[14] Here, a jury found Harris guilty of Class A misdemeanor OVWI causing 

endangerment and Class C misdemeanor OVWI. Following the trial and 

during the sentencing hearing, the trial court acknowledged that the Class C 

misdemeanor offense was a lesser-included offense of the Class A 

misdemeanor. Despite this acknowledgment, the trial court entered a judgment 
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of conviction for both offenses and also stated that the convictions were the 

result of a plea agreement. Accordingly, we remand to the trial court with 

instructions to vacate Harris’ Class C misdemeanor conviction and enter a new 

“Judgment of Conviction and Sentence” order. We also instruct the trial court 

to correct the order to reflect that Harris’ conviction was the result of a jury 

trial. 

[15] Affirmed in part, reverse in part, and remanded with instructions.

Riley, J., and Bailey, J., concur.