Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 1 of 23

ATTORNEY FOR APPELLANT

Michael J. Kyle 

Kathie A. Perry 

Baldwin Kyle & Kamish 

Franklin, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General 

Ellen H. Meilaender 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

Morgan Mannix, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

March 23, 2016

Court of Appeals Case No. 

49A04-1505-CR-294 

Appeal from the Marion Superior 

Court 

The Honorable Kurt M. Eisgruber 

Trial Court Cause No. 

49G01-1211-FC-79738 

Vaidik, Chief Judge. 
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 2 of 23

Case Summary 

[1] Morgan Mannix struck and killed Alex Trabbert, who was walking along the 

road, when she was driving home around 2:30 a.m. Mannix stopped her car 

and briefly looked around but then left when she did not see anything. Mannix 

later consented to a blood draw, which occurred approximately seven and a 

half hours after the accident. The results showed that Mannix’s blood-alcohol 

concentration was 0.10. 

[2] After a jury trial, Mannix was convicted of Class C felony failure to stop after 

an accident resulting in death and Class C felony operating while intoxicated 

causing death. Despite noting that he had never seen more compelling 

mitigators than in this case, the trial judge sentenced Mannix to an aboveadvisory term of six years for each conviction, to be served concurrently. The 

judge suspended two years and ordered one year of probation. 

[3] Reading together Indiana Code sections 9-30-6-15 and 9-30-7-3, we conclude 

that the fact that a chemical test was administered more than three hours after 

an accident does not render it inadmissible; rather, it deprives the State of the 

rebuttable presumption that the driver’s blood-alcohol concentration at the time 

of the test was the same at the time of the accident. In addition, we agree that 

the trial court erred in sentencing Mannix to an above-advisory term for each 

conviction. This is because the judge appeared to rely on the elements of one 

offense to support an above-advisory sentence for the other offense, and vice 

versa, but did not identify anything unique about the circumstances that would 
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justify deviating from the advisory sentence, especially in light of the numerous 

mitigators in this case. We therefore use our review-and-revise authority to 

sentence Mannix to the advisory term of four years with one year suspended for 

each conviction, to be served concurrently, and one year of probation. 

Facts and Procedural History 

[4] In November 2012, twenty-three-year-old Morgan Mannix went home for 

Thanksgiving. She stayed with her parents, who lived on the northeast side of 

Indianapolis. 

[5] The day after Thanksgiving, Mannix drove to a friend’s house at 96th Street 

and Allisonville Road. According to Mannix, she drank “probably” six Bud 

Light beers between 11 p.m. and 1 a.m. Ex. 14. She stopped drinking around 

1:00 a.m. and then left her friend’s house around 2:30 a.m. to drive back home. 

[6] Mannix took Shadeland Avenue to get home. She was driving south on 

Shadeland between 71st and 75th Streets when her passenger-side tires left the 

road and drove on the adjacent grass for over 100 feet.1

 Mannix struck and 

killed twenty-three-year-old Alex Trabbert with her car. Alex had just left 

Fairbanks, an addictions treatment center near Community Hospital North at 

82nd Street and Shadeland, and was walking along Shadeland carrying a pillow 

 

1

 At trial, an officer explained that there was no emergency lane or gravel area between the road and the 

grass. In other words, the road “basically goes from white line to grass.” Tr. p. 237-38. 
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 4 of 23

and trash bag full of his belongings. Mannix did not know what she hit and 

stopped her car. She looked around for about 10-15 seconds but then left when 

she did not see anything. Mannix drove the rest of the way home and went 

straight to bed. She did not call 911. 

[7] Around 5:30 a.m. Saturday morning, a passerby was driving south on 

Shadeland and spotted Alex’s body by the side of the road. The passerby called 

911, and police officers arrived on the scene shortly thereafter. Alex had 

massive head trauma and bleeding. His cause of death was later determined to 

be multiple blunt force trauma to the head. Tr. p. 383. 

[8] When Mannix woke up Saturday morning around 8:30 a.m., she told her 

father, Charles Mannix, that she “was driving home last night and something 

hit [her] car.” Id. at 265. Charles surveyed the damage to his daughter’s car, 

which included a shattered windshield on the passenger side and a dented 

hood. Charles then drove approximately two miles to the location Mannix 

described, where he encountered Indianapolis Metropolitan Police Department 

Detective Eric Snow—a member of Marion County’s Fatal Alcohol Crash 

Team—sweeping debris. Charles asked Detective Snow if there had been an 

accident, and Detective Snow said that a pedestrian had been struck and killed. 

Charles responded, “I think my daughter may have been involved.” Id. at 271. 

Detective Snow asked if he could come to their house to see Mannix’s car, and 

Charles agreed. 
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[9] Detective Snow and Lawrence Police Department Officer Michael McKenna— 

also a member of the Fatal Alcohol Crash Team—went to the Mannix home. 

Detective Snow arrived first; he examined Mannix’s car and then went inside to 

speak with Mannix and her parents. When Officer McKenna arrived, he used a 

card to read Mannix Indiana’s implied-consent law for crashes involving 

fatalities. Id. at 295-96. Officer McKenna specifically told Mannix that she had 

the right to refuse the chemical test as well as the penalties for refusing. Id. at 

295. Mannix consented to a blood draw, and Officer McKenna drove her to 

Eskenazi Hospital.2

 During their interactions with Mannix, both officers 

smelled alcohol on her breath and person. Id. at 300, 467. 

[10] At the hospital, Mannix told the registered nurse that she consented to the 

blood draw and then signed the hospital’s toxicology-sample log, which 

indicated that her blood draw was by “consent.” Id. at 340-41; Ex. 17. 

Mannix’s blood was drawn at 9:52 a.m., approximately seven and a half hours 

after the accident. Tr. p. 543; Ex. 17. Testing showed that Mannix’s bloodalcohol concentration was 0.10. Ex. 23. Using retrograde extrapolation, 

Mannix’s blood-alcohol concentration was estimated to be between 0.17 and 

0.28 at the time of the accident. Testing also showed the presence of marijuana. 

[11] After the blood draw, Mannix agreed to give a statement. She was transported 

to the police station, where she waived her Miranda rights and gave her version 

 

2

 It was called Wishard Hospital at the time. 
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of the events. She explained that after she struck Alex with her car, she 

“freaked out” and “panicked” because she thought she might have hit a person. 

Ex. 14. She stopped her car and briefly looked around but then left “too soon.” 

Id. She acknowledged that she “shouldn’t have left” and that she should have 

called 911. She told the police that she wanted to do “absolutely whatever” she 

could to “take responsibility.” Id. She broke down when the officers told her 

that Alex was her age. 

[12] Three days after the accident, the State charged Mannix with one count: Class 

C felony failure to stop after an accident resulting in death. The State later 

added Class B felony operating a vehicle with a controlled substance or its 

metabolite in the body causing death. Then, on July 17, 2014—which was a 

few days before trial was set to begin and when plea negotiations had stalled—

the State moved to amend the charging information to include three additional 

counts, all involving alcohol: Class B felony operating a vehicle with a bloodalcohol concentration greater than 0.15 causing death, Class C felony operating 

a vehicle with a blood-alcohol concentration greater than 0.08 causing death, 

and Class C felony operating a vehicle while intoxicated causing death. The 

trial court took the trial off the calendar and charged the delay to the State. On 

November 24, 2014, the trial court issued an order allowing the State to add the 

Class C felony OWI-causing-death charge—but not the BAC charges3

—and 

 

3

 The trial court reasoned that the extrapolation evidence could not reliably establish a specific BAC at 

the time of the accident. However, the court noted that the OWI-causing-death charge was different, 
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 7 of 23

rescheduled the trial. See Appellant’s App. p. 195-98 (trial court’s order); 12-13 

(final charging information listing three charges). 

[13] Mannix’s jury trial began April 6, 2015. The jury found Mannix guilty of Class 

C felony failure to stop after an accident resulting in death and Class C felony 

operating a vehicle while intoxicated causing death but not guilty of Class B 

felony operating a vehicle with a controlled substance in the body causing 

death. 

[14] Mannix faced a sentence of “between two (2) and eight (8) years, with the 

advisory sentence being four (4) years” for each Class C felony conviction. Ind. 

Code § 35-50-2-6(a). In addition, both of Mannix’s sentences were fully 

suspendable at that time. See Ind. Code Ann. § 35-50-2-2 (West 2012); Tr. p. 

743, 752 (prosecutor and defense counsel pointing out to the trial court that 

Mannix’s sentences were suspendable). At the sentencing hearing, Mannix, 

who was twenty-six years old, submitted several letters, called five witnesses, 

and testified on her own behalf. Defense counsel argued that Mannix had no 

criminal history, had excelled in her career, and had a rare family structure and 

unit. He also highlighted that Mannix “surrendered to the authorities and was 

cooperative with them,” had engaged in counseling and drug and alcohol 

treatment while on bond awaiting trial, and was clearly remorseful. Id. at 752. 

 

because it required “a showing of intoxication rather than the precision required of BAC calculations.” 

Appellant’s App. p. 198. 
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Defense counsel, who claimed that there were no aggravators, did not ask for a 

fully suspended sentence for Mannix. Instead, he asked that Mannix not be 

sent to the Indiana Department of Correction but rather serve any time through 

Marion County Community Corrections. 

[15] In pronouncing sentence, the trial judge noted that this case involved “a series 

of poor decision making that resulted in a tragedy.” Id. at 757. The judge 

explained that his “philosophy” for these cases is that the “presumption” is that 

the defendant goes to prison when someone dies. Id. The judge acknowledged 

that Mannix was “a good person” and “a highly respected individual in our 

community” and in her profession. Id. at 754, 757. In fact, the judge said that 

“in [his] career,” he had never seen more “compelling” mitigators than in this 

case. Id. at 757. Nevertheless, the judge sentenced Mannix to an aboveadvisory term of six years for each conviction, to be served concurrently. The 

judge suspended two years and ordered the final year of the executed portion of 

the sentence to be served on home detention. See id. at 758 (“Three years at the 

Department of Correction[] followed by one year of Community 

Corrections.”). The judge also ordered Mannix to serve one year of probation. 

[16] Mannix now appeals. 

Discussion and Decision 

[17] Mannix raises three issues on appeal. First, she contends that the trial court 

erred in admitting evidence of her blood draw because her consent was not 
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voluntary. Second, she contends that the trial court erred in allowing the State 

to amend the charging information to add Class C felony OWI causing death 

because it was a substantive amendment that prejudiced her substantial rights. 

Last, she contends that the trial court erred by relying on the elements of the 

offenses to sentence her to an above-advisory term for each conviction. 

I. Consent for Blood Draw 

[18] Mannix contends that the trial court erroneously admitted evidence of her 

blood draw in violation of the Fourth Amendment to the United States 

Constitution. Generally, a search warrant is a prerequisite to a constitutionally 

proper search and seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005). 

In cases involving a warrantless search, the State bears the burden of proving an 

exception to the warrant requirement. Id. One of the well-recognized 

exceptions to the warrant requirement is a voluntary and knowing consent to 

search. Temperly v. State, 933 N.E.2d 558, 563 (Ind. Ct. App. 2010), trans. 

denied. The voluntariness of a consent to search is a question of fact to be 

determined from the totality of the circumstances. Id. A consent to search is 

valid except where it is procured by fraud, duress, fear, or intimidation, or 

where it is merely a submission to the supremacy of the law. Id. 

[19] At trial, the State relied on Indiana’s implied-consent law as authority for the 

warrantless search of Mannix’s blood. Our implied-consent law provides that a 

“person who operates a vehicle impliedly consents to submit” to the test 

provisions “as a condition of operating a vehicle in Indiana.” Ind. Code §§ 9-
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30-6-1, 9-30-7-2. The policy behind this law is to keep roadways safe by 

removing the threat posed by the presence of drunk drivers. State v. Bisard, 973 

N.E.2d 1229, 1232 (Ind. Ct. App. 2012), trans. denied. 

[20] Indiana’s implied-consent law appears at Indiana Code chapters 9-30-6 and 9-

30-7. Indiana Code chapter 9-30-7 applies here because there was a fatality. 

Under this chapter, if a police officer “has reason to believe” that a person 

operated “a vehicle that was involved in a fatal accident or an accident 

involving serious bodily injury,” the officer “shall offer a portable breath test or

chemical test” to that person. Ind. Code § 9-30-7-3(a) (emphasis added). Unlike 

Chapter 9-30-6,4

 the officer is not required to have probable cause that the driver 

was intoxicated. Temperly, 933 N.E.2d at 562; Brown v. State, 744 N.E.2d 989, 

993 (Ind. Ct. App. 2001). Refusal to submit to a portable breath test or 

chemical test is an infraction and results in the suspension of driving privileges. 

Ind. Code § 9-30-7-5. 

[21] Mannix, who concedes that the officers had reason to believe that she was 

involved in the fatality, see Appellant’s Br. p. 10, first argues that her consent 

was not voluntary because the officers did not offer her a portable breath test 

first. In support of this argument, Mannix relies on the following emphasized 

language in Indiana Code section 9-30-7-3(a): 

 

4

 Chapter 9-30-6 requires a police officer to have probable cause that a person was intoxicated before offering 

a chemical test. 
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(a) A law enforcement officer shall offer a portable breath test or 

chemical test to any person who the officer has reason to believe 

operated a vehicle that was involved in a fatal accident or an 

accident involving serious bodily injury. If: 

(1) the results of a portable breath test indicate the presence of 

alcohol; 

(2) the results of a portable breath test do not indicate the presence 

of alcohol but the law enforcement officer has probable cause to 

believe the person is under the influence of a controlled substance 

or another drug; or 

(3) the person refuses to submit to a portable breath test; 

the law enforcement officer shall offer a chemical test to the person. 

Ind. Code § 9-30-7-3(a) (emphasis added). Mannix claims that the emphasized 

language requires an officer to offer a portable breath test before offering a 

chemical test. However, the first sentence of subsection (a) states that an officer 

“shall offer a portable breath test or chemical test.” Id. (emphasis added). 

Therefore, according to the plain language of the statute, when there is an 

accident resulting in serious bodily injury or death, the officer can choose what 

test to offer the driver first: (1) a portable breath test, the results of which are 

generally inadmissible at trial, State v. Whitney, 889 N.E.2d 823, 828 (Ind. Ct. 

App. 2008), or (2) a chemical test, the results of which are admissible at trial if 

certain requirements are met, see Bisard, 973 N.E.2d at 1233. The language that 

follows the first sentence simply sets forth additional conditions that apply if the 

officer chooses to offer the driver a portable breath test first. But because 
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Officer McKenna offered Mannix a chemical test first, these conditions do not 

apply here. We therefore do not address Mannix’s arguments that the officers 

did not satisfy these conditions. 

[22] Mannix next argues that her consent was not voluntary because the impliedconsent law requires chemical tests to be administered within three hours of the 

accident, but her test was administered approximately seven and a half hours 

after the accident. The statute provides: 

(b) A law enforcement officer may offer a person more than one 

(1) portable breath test or chemical test under this section. 

However, all chemical tests must be administered within three (3) hours 

after the fatal accident or the accident involving serious bodily injury. 

I.C. § 9-30-7-3(b) (emphasis added). There are no provisions in Chapter 9-30-7 

that address what happens if the chemical test is not administered within three 

hours of the accident.

[23] We, however, have held that some provisions in Chapters 9-30-6 and 9-30-7 

should be read together. See Temperly, 933 N.E.2d at 565. For example, we 

have specifically applied Indiana Code section 9-30-6-15, which addresses what 

happens if the chemical test is not administered within three hours, to Chapter 

9-30-7. See id. Section 9-30-6-15 provides: 

(b) If, in a prosecution for an offense under IC 9-30-5, evidence 

establishes that: 

(1) a chemical test was performed on a test sample taken 

from the person charged with the offense within the period 
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of time allowed for testing under section 2 of this 

chapter;[5]

 and 

(2) the person charged with the offense had an alcohol 

concentration equivalent to at least eight-hundredths (0.08) 

gram of alcohol per: 

(A) one hundred (100) milliliters of the person’s 

blood at the time the test sample was taken; or 

(B) two hundred ten (210) liters of the person’s 

breath; 

the trier of fact shall presume that the person charged with the offense had 

an alcohol concentration equivalent to at least eight-hundredths (0.08) 

gram of alcohol per one hundred (100) milliliters of the person’s blood or 

per two hundred ten (210) liters of the person’s breath at the time the 

person operated the vehicle. However, this presumption is rebuttable. 

Ind. Code § 9-30-6-15(b) (emphasis added). This statute allows a jury to relate 

the driver’s blood-alcohol concentration at the time of the chemical test back to 

the time of the accident. Disbro v. State, 791 N.E.2d 774, 778 (Ind. Ct. App. 

2003), trans. denied; Allman v. State, 728 N.E.2d 230, 232 (Ind. Ct. App. 2000). 

If the State fails to prove that the chemical test occurred within three hours, it is 

not allowed to rely on the presumption. Allman, 728 N.E.2d at 232. 

 

5

 According to Indiana Code section 9-30-6-2(c), “A test administered under this chapter must be 

administered within three (3) hours after the law enforcement officer had probable cause to believe the person 

committed an offense under IC 9-30-5 or a violation under IC 9-30-15.” 
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[24] Mannix was charged with operating while intoxicated causing death under 

Indiana Code chapter 9-30-5. See Appellant’s App. p. 12. Accordingly, Indiana 

Code section 9-30-6-15 applies. But because Mannix’s blood was drawn more 

than three hours after the accident, the State was deprived of the rebuttable 

presumption in Section 9-30-6-15(b) and therefore must have provided 

extrapolation evidence relating Mannix’s blood-alcohol concentration at the 

time of the test back to the time of the accident. Allman, 728 N.E.2d at 234; 

State v. Stamm, 616 N.E.2d 377, 380 (Ind. Ct. App. 1993). At trial, the State 

presented evidence that Mannix’s blood-alcohol concentration was between 

0.17 and 0.28 at the time of the accident. Accordingly, the fact that Mannix’s 

blood was drawn more than three hours after the accident “is relevant only to 

the rebuttable presumption, not the admissibility of the chemical test.” See 

Stamm, 616 N.E.2d at 380. 

[25] The evidence shows that Mannix consented to a blood draw after Officer 

McKenna read her Indiana’s implied-consent law, including that she had the 

right to refuse the chemical test as well as the penalties for refusing.6

 Mannix 

also told the registered nurse who drew her blood that she consented to the 

blood draw and then signed the hospital’s log indicating that it was a 

 

6

 Mannix filed a motion to suppress in which she claimed that Detective Snow essentially said that she was 

required to have her blood drawn. The trial court ruled that any error in Detective Snow’s advisement was 

later cured when Officer McKenna properly advised Mannix of her rights under the implied-consent law. See

Tr. p. 188-89, 195. Although Mannix appears to revive this argument on appeal, see Appellant’s Br. p. 11, 

she provides no analysis and therefore has waived it. 
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consensual blood draw. Because Mannix voluntarily consented to the blood 

draw, the trial court did not err in admitting evidence of the blood draw. 

II. Amendment of Charging Information 

[26] Mannix next contends that the trial court erred in allowing the State to amend 

the charging information to add Class C felony OWI causing death because it 

was a substantive amendment that prejudiced her substantial rights. The State 

concedes that the amendment was substantive but argues that the amendment 

did not prejudice Mannix’s substantial rights. Appellee’s Br. p. 33-34. 

[27] Indiana Code section 35-34-1-5 governs amendments to charging informations. 

Subsection (b) provides, in pertinent part, that “[t]he indictment or information 

may be amended in matters of substance . . . at any time . . . before the 

commencement of trial . . . if the amendment does not prejudice the substantial 

rights of the defendant.” Ind. Code § 35-34-1-5(b). A defendant’s substantial 

rights “include a right to sufficient notice and an opportunity to be heard 

regarding the charge.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) 

(quotation omitted), reh’g denied. “Ultimately, the question is whether the 

defendant had a reasonable opportunity to prepare for and defend against the 

charges.” Id. at 405-06 (quotation omitted). 

[28] We agree with the State that Mannix’s substantial rights were not prejudiced 

because she had more than sufficient time to prepare for and defend against the 

new charge. The State filed the motion to amend the charging information on 
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July 17, 2014, which the trial granted on November 24, 2014, and the jury trial 

began April 6, 2015. Mannix therefore had almost eight months from when the 

State filed the motion to amend—or almost five months from when the trial 

court granted the amendment—to prepare for and defend against the new 

charge. Because Mannix had a significant amount of time to prepare a defense, 

she cannot show that she was prejudiced by the added charge. See Gomez v. 

State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009) (“Here, the time period 

between the amendment of the charging information and the jury trial was 

approximately ten months and gave Gomez the opportunity to prepare for the 

murder charge. Gomez cannot show that he was prejudiced by the added 

charge as he had ample notice of the new charge and a significant amount of 

time to prepare a defense for the trial.”), trans. denied. Accordingly, the trial 

court did not err when it granted the State’s motion to amend the charging 

information to include Class C felony OWI causing death.

III. Sentencing

[29] Mannix makes several challenges to her sentence, including that the trial court 

erred by relying on the elements of the offenses to sentence her to an aboveadvisory term for each conviction. See Appellant’s Br. p. 14-15. 

[30] The advisory sentence is the starting point our legislature has selected as an 

appropriate sentence for the crime committed. Gomillia v. State, 13 N.E.3d 846, 

852 (Ind. 2014). Nevertheless, a trial judge may impose any sentence within 

the statutory range without regard to the existence of aggravating or mitigating 
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factors. Id. However, if the trial court finds the existence of aggravating or 

mitigating circumstances, then the court is required to give “a statement of the 

court’s reasons for selecting the sentence that it imposes.” Id. (quoting Ind. 

Code § 35-38-1-3); see also Windhorst v. State, 868 N.E.2d 504, 506 (Ind. 2007) 

(“Indiana trial courts are required to enter sentencing statements whenever 

imposing sentence for a felony offense.”), reh’g denied. The statement 

must include a reasonably detailed recitation of the trial court’s 

reasons for imposing a particular sentence. If the recitation 

includes a finding of aggravating or mitigating circumstances, 

then the statement must identify all significant mitigating and 

aggravating circumstances and explain why each circumstance 

has been determined to be mitigating or aggravating. 

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 

218 (Ind. 2007). 

[31] In addition, “[w]here a trial court’s reason for imposing a sentence greater than 

the advisory sentence includes material elements of the offense, absent 

something unique about the circumstances that would justify deviating from the 

advisory sentence, that reason is improper as a matter of law.” Gomillia, 13 

N.E.3d at 852-53. 

[32] Here, the trial judge said that “in [his] career,” he had never seen more 

“compelling” mitigators than in this case. Tr. p. 757. The judge then appeared 

to justify imposing an above-advisory sentence for each conviction by relying 
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on “both counts and the elements” as aggravators.7

 Id. at 757-58. We find this 

problematic for two reasons. First, the sentencing statement did not include a 

reasonably detailed explanation of why both counts and the elements of the 

offenses were aggravating. Second, the judge essentially relied on the elements 

of one offense to support an above-advisory sentence for the other offense, and 

vice versa. In other words, the judge relied on (1) the fleeing element from 

Mannix’s conviction for failure to stop after an accident resulting in death to 

support an above-advisory sentence for OWI causing death and (2) the 

intoxication element from Mannix’s conviction for OWI causing death to 

support an above-advisory sentence for failure to stop after an accident resulting 

in death. Because the judge relied on the elements, he was required to identify 

something unique about the circumstances that would justify deviating from the 

advisory sentence. The judge’s failure to do this was improper as a matter of 

law. 

 

7

 Although the judge did not explain this point further, he did say that he agreed with the prosecutor’s 

analysis that the two counts allowed for an “aggravated sentence.” Tr. p. 757-58. The prosecutor had argued 

earlier that “the operating while intoxicated causing death followed by leaving the scene” were aggravators 

that supported an “enhanced aggravated sentence.” Id. at 743. 

In the alternative, the prosecutor argued that the trial court could impose an advisory sentence for each 

conviction and then run the sentences consecutively. Id. at 743-44. But the prosecutor concluded that he did 

not think consecutive sentences were allowed because the elements (which were used as an aggravator) were 

“both absorbed in the crimes themselves.” Id. Notably, a trial court must find at least one aggravating factor 

before imposing consecutive sentences. See Harris v. State, 964 N.E.2d 920, 926 (Ind. Ct. App. 2012), trans. 

denied. However, neither the State nor the trial court explained why it believed that the elements of the 

offenses could be relied on as an aggravator to justify above-advisory sentences but not used as an aggravator 

to justify consecutive sentences. The State does not continue to make this argument on appeal. 
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[33] Where the trial court has erred in sentencing a defendant, there are several 

options for the appellate court. Windhorst, 868 N.E.2d at 507. “Without a trial 

court sentencing order that meets the requirements of the law,” we have the 

option to remand to the trial court for a clarification or new sentencing 

determination. Id. Additionally, we may exercise our authority to review and 

revise the sentence. Id. 

[34] We choose to exercise our authority to review and revise Mannix’s sentence. 

Accordingly, we revise Mannix’s sentence to the advisory term of four years 

with one year suspended for each conviction, to be served concurrently, and 

one year of probation. 

[35] Affirmed in part and reversed in part. 

Bailey, J., concurs. 

Crone, J., concurs in part and dissents in part. 

 
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 20 of 23

IN THE 

COURT OF APPEALS OF INDIANA

Morgan Mannix, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff. 

March 23, 2016

Court of Appeals Case No. 

49A04-1505-CR-294 

Appeal from the Marion Superior 

Court 

The Honorable Kurt M. Eisgruber, 

Judge 

Trial Court Cause No. 

49G01-1211-FC-79738 

Crone, Judge, concurring in part and dissenting in part. 

[36] I fully concur as to issues I and II. As to issue III, I respectfully dissent. 

[37] Here, as the majority notes, the trial court 

essentially relied on the elements of one offense to support an 

above-advisory sentence for the other offense, and vice versa. In 

other words, the judge relied on (1) the fleeing element from 

Mannix’s conviction for failure to stop after an accident resulting 

in death to support an above-advisory sentence for OWI causing 

death and (2) the intoxication element from Mannix’s conviction 

for OWI causing death to support an above-advisory sentence for 

failure to stop after an accident resulting in death. 

Slip op. at 18. Gomillia does not prohibit this, nor does it require that a trial 

court find “something unique about the circumstances that would justify 

deviating from the advisory sentence” for an offense based on an element of 
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another offense. 13 N.E.2d at 852-53.8

 But even if the trial court had been 

required to do so in this case, I believe that the distinguishing elements of the 

offenses (fleeing, intoxication) are self-evident and therefore sufficient to 

support the trial court’s sentence. 

[38] On a more basic level, it is beyond dispute that committing multiple offenses is 

worse than committing one offense. Just as a person who harms multiple 

victims may deserve more punishment than a person who harms one victim,9

 a 

person who commits multiple offenses may deserve more punishment than a 

person who commits only one offense. I fail to see how the commission of two 

offenses cannot be considered an aggravating circumstance compared to the 

commission of one offense. 

[39] Mannix asks us to reduce her sentence pursuant to Indiana Appellate Rule 7(B), 

which provides that we may revise a sentence authorized by statute if, after due 

consideration of the trial court’s decision, we find that the sentence is 

inappropriate in light of the nature of the offense and the character of the 

offender. “The purpose of our review is not to reach what we perceive to be a 

‘correct’ sentence but merely to ‘leaven the outliers.’” Gibson v. State, 43 N.E.3d 

 

8

 The Gomillia court’s rationale for requiring a trial court to find “something unique about the circumstances 

that would justify deviating from the advisory sentence” for an offense based on an element of that offense is 

that “the Legislature has determined the appropriate advisory sentence based upon the elements of the 

offense.” 13 N.E.3d at 852-53. That rationale does not (and in my view should not) apply to the 

enhancement of a sentence based on an element of a separate offense. 

9 See Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003) (“[W]hen the perpetrator commits the same offense 

against two victims, enhanced and consecutive sentences seem necessary to vindicate the fact that there were 

separate harms and separate acts against more than one person.”). 
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 22 of 23

231, 241 (Ind. 2015) (quoting Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)). 

“Because sentencing is a highly case-sensitive endeavor, we recognize it is 

generally a decision best made at the trial court level.” Id. “[A]ppellate review 

should focus on the forest—the aggregate sentence—rather than the trees—

consecutive or concurrent, number of counts, or length of the sentence on any 

individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). 

[40] “When reviewing the appropriateness of a sentence under Rule 7(B), we may 

consider all aspects of the penal consequences imposed by the trial court in 

sentencing the defendant, including whether a portion of the sentence was 

suspended.” Weedman v. State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. 

denied (2015). Here, the trial court suspended two years of Mannix’s concurrent 

six-year terms and allowed her to spend one of the four remaining years on 

home detention rather than in the Department of Correction. “The question 

under Appellate Rule 7(B) is not whether another sentence is more appropriate; 

rather, the question is whether the sentence imposed is inappropriate. It is the 

defendant’s burden on appeal to persuade us that the sentence imposed by the 

trial court is inappropriate.” Hunt v. State, 43 N.E.3d 588, 590 (Ind. Ct. App. 

2015) (citation omitted), trans. denied. 

[41] Mannix’s “nature of the offense” argument is based solely on the trial court’s 

reliance on the elements of one offense to support an enhanced sentence for the 

other offense. This is more properly characterized as a claim that the trial court 

abused its discretion in considering aggravating factors, which requires a 

separate analysis. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). I 
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 23 of 23

would find no abuse of discretion for the reasons given above, and I would also 

find that Mannix has waived her inappropriateness argument as to the nature of 

her offenses. 

[42] Waiver notwithstanding, I find such argument unpersuasive. Mannix drank at 

least six beers and got behind the wheel of her car in the middle of the night. 

She drove off the road for over 100 feet and struck Alex Trabert with enough 

force to knock him out of his shoes and into her windshield, which shattered. 

She made only a cursory effort to find whatever she hit, did not attempt to 

summon help, drove home, and went to bed. Later that morning, Trabert’s 

dead body was found on the side of the road, and Mannix’s blood tested 

positive for both alcohol and marijuana. The nature of Mannix’s offenses 

supports a sentence above the advisory term and reflects unfavorably on her 

character. Although she has no criminal history and has achieved some 

educational and vocational success, she exhibited extremely poor judgment that 

resulted in the death of an innocent young man. She has used alcohol and 

marijuana since she was a teenager, and she continued to consume alcohol until 

the week of trial. Appellant’s App. at 237 (presentence investigation report). 

Mannix has failed to persuade me that the trial court’s sentence is 

inappropriate, and therefore I would affirm it.