Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1449 | March 29, 2017 Page 1 of 7

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

Barbara J. Simmons

Oldenburg, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Marjorie Lawyer-Smith

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tin Nung,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 29, 2017

Court of Appeals Case No.

49A04-1606-CR-1449

Appeal from the Marion Superior 

Court

The Honorable Duane E. 

Merchant, Judge Pro Tempore 

Trial Court Cause No.

49G07-1510-CM-37196

Najam, Judge.
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Statement of the Case

[1] Tin Nung appeals his two convictions for public intoxication, each as a Class B 

misdemeanor, following a bench trial. Nung raises a single issue for our 

review, namely, whether his two convictions are barred by Indiana’s 

prohibitions against double jeopardy. We reverse and remand with 

instructions.

Facts and Procedural History

[2] On October 19, 2015, Indianapolis Metropolitan Police Department Officer 

Michael Gibson observed a vehicle stopped on Wellwood Road in 

Indianapolis. The stopped vehicle blocked the southbound lane of travel. Cars 

attempting to proceed south on Wellwood Road were forced to drive onto a 

curb to avoid the vehicle.

[3] Officer Gibson observed Nung seated alone in the vehicle. The vehicle’s 

ignition was off and there was no key in the ignition. Officer Gibson 

immediately detected the smell of alcohol coming from Nung. 

[4] There had been cold weather that day, including freezing rain at one point, and 

Nung was wearing only shorts and a t-shirt. Nung required help getting out of 

the car and nearly fell several times once out of the vehicle. Officer Gibson 

determined that Nung was intoxicated and arrested him.

[5] On October 19, 2015, the State charged Nung with two counts of public 

intoxication: one for endangering himself, see I.C. § 7.1-5-1-3(a)(1), and one for 
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endangering the life of another person, see I.C. § 7.1-5-1-3(a)(2). Thereafter, the 

court held Nung’s bench trial, at which Officer Gibson testified. In its closing 

argument, the State asserted:

[Nung] argued that . . . the endangerment issue was 

the . . . weather. The State would like to point out, that was not 

our argument. That the vehicle being parked in the roadway 

with no key or no way to move the vehicle and [Nung] sitting in 

that vehicle, he was a danger both to himself and everybody else 

on the roadway . . . .

Tr. at 21. The trial court agreed with the State and found Nung guilty on both 

counts, stating: 

I’m finding that there was endangerment and I’m going to find 

him guilty on both counts. . . . In terms of endangerment, it’s my 

understanding that the vehicle was in the roadway itself. . . . I 

believe that the officer also articulated that there were other 

vehicles in the area . . . . And I believe he articulated that at least 

one vehicle drove on the sidewalk to . . . get by the vehicle. And 

I think that that is a hazardous condition.

Id. at 23-24. The court then entered judgment against Nung and sentenced him 

to an aggregate term of 180 days imprisonment, with all but two days 

suspended to probation. This appeal ensued.

Discussion and Decision

[6] Nung asserts on appeal that the entry of two convictions of Class B 

misdemeanor public intoxication violated the actual evidence test under 

Indiana’s Double Jeopardy Clause. Questions of double jeopardy implicate 
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fundamental rights and, as such, may be raised for the first time on appeal, or 

even by this court sua sponte. See Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct. 

App. 2008). Whether convictions violate double jeopardy is a pure question of 

law, which we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. 

App. 2012), trans. denied.

[7] Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy, 

providing that “[n]o person shall be put in jeopardy twice for the same offense.”

As our supreme court has explained:

In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court 

concluded that two or more offenses are the same offense in 

violation of article 1, section 14 if, with respect to either the 

statutory elements of the challenged crimes or the actual evidence 

used to obtain convictions, the essential elements of one 

challenged offense also establish the essential elements of another 

challenged offense. Under the actual evidence test, we examine 

the actual evidence presented at trial in order to determine 

whether each challenged offense was established by separate and 

distinct facts. Id. at 53. To find a double jeopardy violation 

under this test, we must conclude that there is “a reasonable 

possibility that the evidentiary facts used by the fact-finder to 

establish the essential elements of one offense may also have 

been used to establish the essential elements of a second 

challenged offense.” Id. The actual evidence test is applied to all 

the elements of both offenses. “In other words . . . the Indiana 

Double Jeopardy Clause is not violated when the evidentiary 

facts establishing the essential elements of one offense also 

establish only one or even several, but not all, of the essential 

elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 

833 (Ind. 2002).
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Our precedents “instruct that a ‘reasonable possibility’ that the 

jury used the same facts to reach two convictions requires 

substantially more than a logical possibility.” Lee v. State, 892 

N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable 

possibility standard “fairly implements the protections of the 

Indiana Double Jeopardy Clause and also permits convictions for 

multiple offenses committed in a protracted criminal episode 

when the case is prosecuted in a manner that insures that 

multiple guilty verdicts are not based on the same evidentiary 

facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a 

“‘reasonable possibility’ turns on a practical assessment of 

whether the [fact-finder] may have latched on to exactly the same 

facts for both convictions.” Lee, 892 N.E.2d at 1236. We 

evaluate the evidence from the [fact-finder’s] perspective and may 

consider the charging information, jury instructions, and 

arguments of counsel. Id. at 1234.

Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (second-to-last alteration 

original).

[8] Nung contends that his convictions fail under the actual evidence test because 

the same facts—that he was intoxicated in a vehicle stopped in the middle of a 

road—were used to establish both his conviction for public intoxication on the 

grounds that he endangered himself and his conviction for public intoxication 

on the grounds that he endangered others. The State responds that there is no 

double jeopardy violation here because there was separate evidence to support 

each conviction. Specifically, the State argues that Nung’s attire given the 

weather conditions “created a dangerous situation for himself . . . , which 

satisfies the definition of ‘endanger.’” Appellee’s Br. at 10 (citation omitted).
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[9] We reject the State’s reliance on Nung’s attire and the weather conditions, 

which the State itself expressly refused to rely on in the trial court. Again, 

during its closing argument, the State told the court, which was acting as the 

fact-finder, that Nung’s “attire for the weather . . . was not our argument” 

regarding “the endangerment issue.” Tr. at 21. And the trial court, in finding 

Nung guilty as charged, relied on the State’s argument, finding that the State 

demonstrated endangerment by showing that “the vehicle was in the roadway”; 

“there were other vehicles in the area”; and “at least one vehicle drove on the 

sidewalk” to get around Nung, all of which demonstrated “a hazardous 

condition.” Id. at 23-24.

[10] Thus, in light of the State’s explicit argument and the court’s unambiguous 

reliance on that argument, there is more than a reasonable possibility that the 

trial court relied on the same evidentiary facts to find Nung guilty of both 

offenses—there is no question at all that the court relied on the same 

evidentiary facts. As such, the entry of judgment on both charges violates 

Indiana’s Double Jeopardy Clause. 

[11] Accordingly, we must reverse one of Nung’s two convictions. His convictions 

were both Class B misdemeanors with concurrent sentences. We reverse 

Nung’s conviction on Count II, regarding endangerment to others. We remand 

with instructions for the court to vacate that conviction.

[12] Reversed and remanded.
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Riley, J., and Bradford, J., concur.