Court of Appeals of Indiana | Memoran dum Decision 18A

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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 A. David Hutson Hutson Legal Jeffersonville, Indiana A TTORNEY S FOR A PPELLEE 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 Ca se No. 18A

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- 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 | Memoran dum Decision 18A

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### 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 in sufficient evidence to establish venue ; and (2) remand is necessary
to correct the sentencing order because the trial court erred when it enter ed a judgment of conviction for the lesser

- included offense of Class C misdemeanor OVWI and indicat ed that the convictions were pursuant to a plea agreement

. Concluding that the State presented sufficient evidence to establish venue and that remand is necessary , w e affirm in part, reverse in part, and remand to the trial court with instructions

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

. 

### Issue s

1. Whether the State presented sufficient evidence to establish venue

. 2. Whether remand is necessary to correct sentencing order err or s
.

1 I ND
. C ODE § 9

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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 obs erving traffic leave Kentucky and enter Indiana

. Trooper Meers observed a For d 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 swerv ed 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 railroa d bridge on Stansifer Avenue

. T he 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. 10 6 ). Trooper Meers then a sked 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 transportedCourt of Appeals of Indiana | Memoran dum Decision 18A

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Harris to Clark Me morial 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 C ount y , Indiana. ” (Tr. 135). After an off

- the

- record discussion in chambers, t he trial court d eni ed the motion. The reafter, 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 r esult 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.Court of Appeals of Indiana | Memoran dum Decision 18A

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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 offen ses and imposed a one - year suspended se ntence to probation , except ninety (90) da ys home detention. T he trial court also stated : The Court finds the Defendant pled guilty freely and voluntarily, with full knowledge of rights, and there was a factual basi s 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 in sufficient 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 argue s that the State failed to present su fficient 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] V enue 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 aCourt of Appeals of Indiana | Memoran dum Decision 18A

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preponderance of th e 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 (I nd. 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,

“ t he State meets its burden of establishing venue if the facts and circumstances per mit 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 wa s insufficient evidence to establish venue in Clark County . Our review of the record , however, reveals testimony from which the jury could have infer red 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 Bri dge. ” (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 activat ed his emergency lights, Harris stopped in a parking lot near the intersection of Stansifer Avenue and Spring Street. A fter two failed field sobriety tests and a refusal to submit to a blood test while at Clark Memorial Hospital , Harris was transported to t he Clark County Jail. Further, w hen 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 warra nt on a run
- of

- the

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mill OVWI. (Tr. 133). W e 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] I ND IANA C ODE § 35

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- 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 it s commission.’” Watson v. State , 972 N.E.2d 378, 384 (Ind. Ct. App. 2012) (quoting Sering v. State , 488 N.E.2d 3 69, 3 75 (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 judgmentCourt of Appeals of Indiana | Memoran dum Decision 18A

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of convicti on 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

“ J udgment of C onviction and S entence ” 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 Ba iley, J., concur
.