Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 1 of 16

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

Jeffrey W. Elftman

Bolinger Law Firm

Kokomo, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Jacoby Sanders,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 21, 2016

Court of Appeals Case No.

52A02-1511-CR-2061

Appeal from the Miami Superior 

Court

The Honorable J. David Grund, 

Judge

Trial Court Cause No.

52D01-1312-FB-93

Bailey, Judge.
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Case Summary

[1] Jacoby Sanders (“Sanders”) appeals his convictions for Failing to Stop after an 

Accident Resulting in Serious Bodily Injury, a Class B felony,1 Operating a 

Vehicle While Intoxicated Endangering a Person,2 a Class A misdemeanor, 

Causing Death when Operating a Motor Vehicle while Intoxicated, a Class C 

felony,3 and Failure to Stop after an Accident Resulting in Death, a Class C 

felony.4 We remand with instructions to vacate the Class A misdemeanor 

conviction and the Class C felony convictions, on double jeopardy grounds. 

We affirm the Class B felony conviction for Failing to Stop.

Issues

[2] Sanders presents four issues for review:

I. Whether the State presented sufficient evidence that 

Sanders was intoxicated;

II. Whether the State presented sufficient evidence to support 

Sanders’ conviction for failing to stop after an accident; 

 

1

Ind. Code §§ 9-26-1-1(a)(2), 9-26-1-8(a)(3).

2

I.C. §§ 9-30-5-2(a), 9-30-5-2(b).

3

I.C. § 9-30-5-5(a)(3).

4

I.C. §§ 9-26-1-1(1), 9-26-1-8(a)(3). He does not specifically challenge his conviction for Illegal Consumption 

of an Alcoholic Beverage by a Minor. 
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III. Whether the trial court abused its sentencing discretion by 

recognizing an improper aggravator or ignoring mitigating 

evidence when imposing the aggregate sentence; and 

IV. Whether the fifteen-year aggregate sentence, with three 

years suspended to probation, is inappropriate.

We sua sponte raise the issue of whether Sanders’ multiple convictions for 

failing to stop after an accident and operating a vehicle while intoxicated violate 

double jeopardy principles.

Facts and Procedural History

[3] During the late evening hours of May 10, 2013, and the early morning hours of 

the next day, twenty-two year old Adam Betzner (“Betzner”) was entertaining a 

group of friends and acquaintances at his parents’ home while they were out-oftown. Two of the guests were Sanders, and his best friend, D.J. Rose (“Rose”). 

Other guests included Mark Watkins (“Watkins”), Miranda Worl (“Worl”), 

Terrin Cooper (“Cooper”), and Dakota Rose (“Dakota”).

[4] Sanders and Rose went to a grocery store to get beer and Jack Daniels whiskey. 

Because both of them were underage, they convinced another customer to get 

the alcohol for them, which they took to the Betzner residence. Watkins 

brought a twelve-pack of beer. Also, some mixed drinks and synthetic 

marijuana known as Spice were available.
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[5] Shortly after 2:30 a.m. on May 11, Cooper and Watkins left on a forty-fiveminute round trip to the grocery store. By this time, Dakota was passed out 

and Sanders appeared to Betzner to be intoxicated. When Betzner overheard 

Sanders talking to Rose about going for a drive, Betzner “sternly” warned them 

“they had no business on the road” because they were drunk. (Tr. at 112.) As 

Cooper and Watkins returned from the grocery store, they saw that Worl, 

Sanders, and Rose were preparing to leave. Cooper and Watkins “were trying 

to talk them out of leaving” because Rose and Sanders appeared intoxicated. 

(Tr. at 144.) 

[6] Undeterred, Sanders, Rose, and Worl left the Betzner residence. Sanders was 

driving, Worl was in the front passenger seat, and Rose was in the back seat. 

Minutes later, Sanders disregarded a stop sign and then “just went straight” 

instead of “turning with” a sharp curve in the road. (Tr. at 84.) The vehicle 

went down an embankment and struck a tree.

[7] The airbags deployed, and Worl was temporarily disoriented. After a while, 

she and Sanders opened their doors and exited the vehicle. Worl realized that 

Rose had not done likewise. She opened a door to find Rose slumped toward 

the window. She pulled until he fell from the vehicle. Sanders came around 

the vehicle and tried to assist, but realized that his own leg was broken. Sanders 

told Worl to “go back and get help.” (Tr. at 86.)

[8] Worl walked back to the Betzner residence and told Watkins, Cooper, and 

Betzner that there had been an accident. Worl appeared calm and uninjured, so 
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the initial response from the partygoers was that Worl was playing a part in a 

practical joke. After Worl persisted, Cooper and Betzner left to locate the 

wreck. As they drove near the wrecked vehicle, Cooper and Betzner could see 

that it had caught fire and burned. 

[9] Cooper and Betzner called out for Sanders, without response. Betzner went 

down the embankment and found Rose’s body with the feet under the vehicle. 

It was later learned that Rose had died upon impact. However, his body was 

badly burned.

[10] Cooper called 9-1-1 to report the accident. She pretended to have come upon 

the accident by happenstance and denied seeing anyone near the wreckage. By 

this time, Sanders had crawled toward Cooper’s vehicle. Cooper opened the 

back door, and Sanders crawled into the back seat. Betzner came back up the 

hill and reported that Rose was dead. Cooper then hung up on the 9-1-1 

operator.

[11] Sanders began yelling “we need to go,” but Betzner told him “you can’t run 

from this.” (Tr. at 163.) After Betzner screamed at Sanders: “he’s dead, you 

killed him he’s dead. DJ’s dead,” Sanders responded: “I don’t give a f--- about 

DJ we just need to get out of here.” (Tr. at 118.) Cooper drove off, with both 

men screaming at each other. Cooper considered taking Sanders to a hospital, 

but honored his request to be taken to his father’s house, which was nearby.
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[12] After he was left with his father, Sanders was taken to Dukes Memorial 

Hospital. At 6:37 a.m., hospital staff drew a sample of Sanders’ blood,

disclosing an alcohol serum level of 63 mg per deciliter.5

[13] On December 5, 2013, the State charged Sanders with six counts related to the 

fatal accident. A seventh charge was added on August 17, 2015. Sanders was 

tried before a jury, acquitted of two charges,6 and convicted of five. This appeal 

ensued. 

Discussion and Decision

Sufficiency of the Evidence – Intoxication

[14] Sanders challenges each of the convictions requiring proof of intoxication. In 

Count 1, the State alleged that Sanders violated Indiana Code Section 9-26-1-

1(a)(2) when he failed to stop and render reasonable assistance after he 

committed operating while intoxicated, resulting in serious bodily injury to 

Rose. At that time, Indiana Code Section 9-26-1-8(a)(3) provided that the 

offense of failure to stop was a Class B felony if the person knowingly or 

intentionally failed to stop after committing operating while intoxicated causing 

serious bodily injury. In Count 3, the State alleged that Sanders operated a 

 

5

In the opinion of toxicologist George Behonick, assuming all of the alcohol had been absorbed at the time 

of the accident, Sanders’ BAC would have been .093 if the accident occurred at 4:00 a.m., .102 if the accident 

occurred at 3:20 a.m., and .107 if the accident occurred at 3:00 a.m. 

6 Operating a vehicle with an ACE of .08 or more, a Class C misdemeanor, I.C. § 9-30-5-1, and Causing 

Death when Operating a Motor Vehicle with an ACE of .08 or more, a Class C felony, I.C. § 9-30-5-5.
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vehicle while intoxicated, in a manner that endangered a person, in violation of 

Indiana Code Section 9-30-5-2. In Count 6, the State alleged that Sanders 

caused the death of Rose, when operating a motor vehicle while intoxicated, in 

violation of Indiana Code Section 9-30-5-5(a)(3).

[15] Pursuant to Indiana Code Section 9-13-2-86(1), “intoxicated means under the 

influence of alcohol so that there is an impaired condition of thought and action 

and the loss of normal control of a person’s faculties.” Sanders concedes that 

he was intoxicated at some point during the party, but argues that the State 

failed to show that he was impaired when he was driving.

[16] When reviewing a challenge to the sufficiency of the evidence, we neither 

reweigh the evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 

639, 652 (Ind. 2008). We consider only the evidence supporting the judgment 

and the reasonable inferences that can be drawn from that evidence. Id. A 

conviction will be affirmed if there is substantial evidence of probative value 

such that a reasonable trier of fact could have concluded the defendant was 

guilty beyond a reasonable doubt. Id.

[17] Betzner testified that Sanders had been the heaviest drinker at the party. 

According to Betzner, he confronted Sanders about leaving because Sanders 

appeared intoxicated. Betzner described Sanders as “stumbling, not walking 

straight, acting very belligerent, [and] slurring his words” shortly before Betzner 

noticed that Sanders, Worl, and Rose were missing. (Tr. at 115.) Watkins 

testified that he and Cooper tried to dissuade the trio from leaving because 
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Sanders and Rose had been drinking most of the night and Sanders was 

“acting” intoxicated. (Tr. at 54.) Cooper also testified that, as she and Watkins 

came back from the grocery store, they found that Sanders, Rose, and Worl 

were going for a drive and she and Watkins tried to talk them out of leaving. 

Cooper testified that she believed Sanders was intoxicated “not nearly as bad as 

DJ but enough to where he shouldn’t have been driving.” (Tr. at 144.) 

[18] Finally, Dr. George Behonick, a toxicologist, testified regarding his assessment 

of the hospital and law enforcement blood draws. Dr. Behonick opined that 

Sanders would have had a blood alcohol content of between .093 and .107, 

depending upon the time of the accident. Dr. Behonick testified that a person 

begins to show impairment when the person has a BAC of around .05.

[19] The State presented sufficient evidence to permit the jury to conclude, beyond a 

reasonable doubt, that Sanders was intoxicated when he drove. His contention 

that he attained sufficient sobriety that he was no longer impaired when he 

drove is an invitation to reweigh the evidence. We will not do so.

Sufficiency of the Evidence – Leaving the Scene

[20] Sanders was convicted of violating Indiana Code Section 9-26-1-8, which 

provides in pertinent part:

A person who knowingly or intentionally fails to stop or comply 

with section 1(1) or 1(2) of this chapter after causing injury to a 

person commits a Class A misdemeanor. However, the offense 

is: ... a Class C felony if the accident involves the death of a 

person; and a Class B felony if the person knowingly or 
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intentionally fails to stop or comply with section 1(1) or 1(2) of 

this chapter after committing operating while intoxicated causing 

serious bodily injury.

[21] At the time of the fatal accident, Indiana Code Section 9-26-1-1 dictated that a 

driver involved in an accident resulting in injury, death, or entrapment had a 

duty to remain at the scene of the accident until the driver provided 

identification and registration information. Additionally, the driver was 

required [subject to the physical incapability provisions of section 1.5(a) of the 

same chapter] to determine the need for and render reasonable assistance to 

each person injured or entrapped. Finally, the driver was required to 

immediately give notice of the accident by the quickest means of

communication to law enforcement.

[22] Sanders points out that his leg was broken, Worl left to report the accident, and 

someone else was driving when he left the scene. Essentially, Sanders argues 

that he did the best he could under the circumstances and should not be held 

criminally liable. However, the State presented evidence that Sanders directed 

the actions of others. Specifically, there was testimony indicating that Sanders 

told Worl to return to the Betzner residence although there was a much closer 

residence. When Cooper and Watkins returned to investigate, “there was 

nobody to be seen” and Sanders did not respond to calls for several minutes. 

(Tr. at 117.) He had crawled across the road “pretty far out in the woods.” (Tr. 

at 117.) When Watkins told Sanders that Rose was dead and urged, “you can’t 

run from this,” Sanders screamed, cursed, and insisted upon leaving. (Tr. at 
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163.) As they left, Sanders, Worl, and Cooper were able to hear the sirens from 

approaching emergency vehicles. The immediate availability of emergency 

services undercuts Sanders’ suggestion that he was trying to get to a hospital 

and get medical attention as quickly as possible. At its core, Sanders’ argument 

that he was an injured hemophiliac who attempted substantial statutory 

compliance merely presents an invitation to reweigh the evidence. The State 

presented sufficient evidence that Sanders intentionally failed to comply with 

his duties as a driver involved in a fatal accident.

Double Jeopardy

[23] The double jeopardy clause of the Indiana Constitution provides, “No person 

shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. 

Our Indiana Supreme Court has held that two or more offenses are the “same 

offense” in violation of Indiana’s double jeopardy clause if, with respect to 

either the statutory elements of the challenged crimes or the actual evidence 

used to convict, the essential elements of one challenged offense also establish 

the essential elements of another challenged offense. Richardson v. State, 717 

N.E.2d 32, 49 (Ind. 1999).

[24] Aside from the constitutional actual evidence test, our Indiana Supreme Court 

has identified five common law or statutory double jeopardy categories: (1) 

conviction and punishment for a crime which is a lesser-included offense of 

another crime for which the defendant has been convicted and punished, (2) 

conviction and punishment for a crime which consists of the very same act as 
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another crime for which the defendant has been convicted and punished, (3) 

conviction and punishment for a crime which consists of the very same act as 

an element of another crime for which the defendant has been convicted and 

punished, (4) conviction and punishment for an enhancement of a crime where 

the enhancement is imposed for the very same behavior or harm as another 

crime for which the defendant has been convicted and punished, and (5) 

conviction and punishment for the crime of conspiracy where the overt act that 

constitutes an element of the conspiracy charge is the very same act as another 

crime for which the defendant has been convicted and punished. Guyton v. 

State, 771 N.E.2d 1141, 1143 (Ind. 2002). 

[25] The second and third categories are implicated here. In Count 1, the State 

alleged that Sanders committed a Class B felony when he failed to stop “after 

committing Operating While Intoxicated Resulting in Serious Bodily Injury 

which resulted in serious bodily injury to Dalton James Rose.” (App. at 14.) In 

Count 7, the State alleged that Sanders committed a Class C felony when he 

failed to stop after “being involved in an accident resulting in death to Dalton 

James Rose.” (App. at 68.) The State presented evidence to establish that 

Sanders, after having committed driving while intoxicated, failed to comply 

with his statutory duties in light of injury to Rose. He was properly convicted 

of a Class B felony. However, the State did not establish that Sanders engaged 

in a separate act supporting the Class C felony, where the Information again 

referenced injury to Rose.
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[26] Sanders’ offense of failure to stop was elevated to a Class B felony upon proof 

that he committed “operating while intoxicated causing serious bodily injury.” 

I.C. 9-26-1-8(a)(3). However, Sanders was also convicted of Count 3, Class A 

misdemeanor Operating While Intoxicated Endangering a Person and Count 6, 

Class C felony Causing Death When Operating a Motor Vehicle While 

Intoxicated.

[27] As the convictions for Counts 3, 6, and 7 do not rest upon independent facts, 

the multiple convictions cannot stand. We therefore direct the trial court to 

vacate the Class C felony convictions and the Class A misdemeanor conviction.

Abuse of Sentencing Discretion

[28] Upon conviction of a Class B felony, Sanders faced a sentencing range of six to 

twenty years, with the advisory sentence being ten years. I.C. § 35-50-2-5. 

Sanders received a fifteen-year sentence for his Class B felony conviction, with 

three years suspended. 

[29] “So long as the sentence is within the statutory range, it is subject to review 

only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 

2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (“Anglemyer II”). 

This includes the finding of an aggravating circumstance and the omission to 

find a proffered mitigating circumstance. Id. at 490-91. When imposing a 

sentence for a felony, the trial court must enter “a sentencing statement that 

includes a reasonably detailed recitation of its reasons for imposing a particular 

sentence.” Id. at 491.
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[30] The trial court’s reasons must be supported by the record and must not be 

improper as a matter of law. Id. However, a trial court’s sentencing order may 

no longer be challenged as reflecting an improper weighing of sentencing factors. 

Id. A trial court abuses its discretion if its reasons for imposing a particular 

sentence are clearly against the logic and effect of the facts and circumstances 

before the court, or the reasonable, probable, and actual deductions to be drawn 

therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).

[31] Here, the trial court found Sanders’ youth to be a mitigating circumstance. As 

aggravators, the trial court recognized that Sanders has a criminal history, he was 

on probation at the time of the instant offenses, and he refused to attend substance 

abuse counseling. According to Sanders, the record does not support a finding 

that he refused substance abuse counseling. Additionally, Sanders argues that

the trial court should have recognized in mitigation that Rose “induced or 

facilitated the offense” and incarceration would result in undue hardship to 

Sanders because of his hemophilia. Appellant’s Br. At 18.

[32] Sanders acknowledges that he missed a drug counseling appointment the 

morning of the accident. However, he claims that his compliance was 

impossible because he was in the hospital with a broken leg. He does not focus 

upon the testimony that he had missed, and re-scheduled, a prior appointment. 

Nonetheless, even if a trial court has relied upon an improper factor as an 

aggravating circumstance, the sentence may be upheld so long as other valid 

aggravating circumstances exist. Bacher v. State, 722 N.E.2d 799, 803 (Ind. 
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2000). Here, other valid aggravators exist. Sanders has a criminal history and 

violated his probation. 

[33] An allegation that the trial court failed to identify or find a mitigating factor 

requires the defendant to establish that the mitigating evidence is not only 

supported by the record but also that the mitigating evidence is significant. 

Anglemyer II, 875 N.E.2d at 220-21. The trial court is not obligated to explain 

why it did not find a particular circumstance to be significantly mitigating. 

Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001). 

[34] Sanders claims that Rose facilitated the offense. According to Sanders, Rose 

was bored and wanted to go for a ride; Sanders did not “force or coerce” him. 

Appellant’s Br. at 19. Sanders was not charged with a criminal offense 

involving force or coercion. To the extent that Sanders suggests Rose’s 

complicity excused Sanders’ behavior, we disagree. The record reveals that 

Sanders ignored his friends’ warnings, regained his car keys (which had been 

taken away by Worl earlier in the evening), and chose to drive in an impaired 

condition. Rose was not responsible for Sanders’ choices.

[35] As for hardship during incarceration, Sanders presented evidence of his 

hemophilia. However, there was also evidence presented that the Indiana 

Department of Correction has inmates with this condition and appropriate 

medical resources to manage the condition. Sanders has not demonstrated that 

the trial court abused its sentencing discretion in the recognition of aggravating 

or mitigating circumstances. 
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Appropriateness of Sentence 

[36] Under Indiana Appellate Rule 7(B), this “Court may revise a sentence 

authorized by statute if, after due consideration of the trial court’s decision, the 

Court finds that the sentence is inappropriate in light of the nature of the offense 

and the character of the offender.” In performing our review, we assess “the 

culpability of the defendant, the severity of the crime, the damage done to 

others, and myriad other factors that come to light in a given case.” Cardwell v. 

State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is 

to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the 

appellate court that his or her sentence has met th[e] inappropriateness standard 

of review.”’ Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848 

N.E.2d 1073, 1080 (Ind. 2006)).

[37] As for the nature of the offense, Sanders drove while intoxicated, resulting in 

his best friend’s death. He then crawled away and hid himself in nearby woods. 

When his friends returned, Sanders insisted upon leaving the scene.

[38] As to the character of the offender, Sanders has a long history of substance 

abuse. He was adjudicated a juvenile delinquent for possessing a controlled 

substance, a Class C felony, if committed by an adult. He was placed on 

probation, which he violated. He was then removed from his mother’s home 

and placed in a youth center. Shortly after he became an adult, Sanders pled 

guilty to criminal mischief. He was on probation at the time he committed the 

present offenses.
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[39] Also, Sanders’ conduct in the aftermath of the fatal accident does not speak 

well of his character. When his friends returned to the accident scene, Sanders’ 

concern was for himself. Indeed, he screamed that he didn’t’ “give a f--- about”

Rose. (Tr. at 118.) 

[40] Having reviewed the matter, we conclude that the trial court did not impose an 

inappropriate sentence under Appellate Rule 7(B), and the sentence does not 

warrant appellate revision. Accordingly, we decline to disturb the sentence 

imposed by the trial court.

Conclusion

[41] Sanders’ Class A misdemeanor and Class C felony convictions must be vacated 

on double jeopardy grounds. The State presented sufficient evidence to support 

Sanders’ conviction of the Class B felony. Sanders has not shown that the trial

court abused its sentencing discretion. The aggregate sentence is not 

inappropriate.

[42] Affirmed in part; remanded with instructions to vacate the Class A 

misdemeanor and Class C felony convictions. 

Bradford, J., and Altice, J., concur.