Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017 Page 1 of 11

ATTORNEY FOR APPELLANT

Michael R. Fisher

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Katherine Cooper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jordan Stafford,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 31, 2017

Court of Appeals Case No.

49A05-1609-CR-2012

Appeal from the Marion Superior 

Court

The Honorable Sheila Carlisle, 

Judge

Trial Court Cause No. 

49G03-1511-FC-39288

Bradford, Judge.
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Case Summary

[1] On the morning of May 9, 2014, Coty DeMoss and Kenneth Duerson were 

working on a traffic project on Interstate 69 in Marion County. DeMoss and 

Duerson were helping to dismantle an arrow board in order to open a closed 

lane of traffic. DeMoss and Duerson were completing this task when a truck 

driven by Appellant-Defendant Jordan Stafford crashed into the back of another 

truck parked at the worksite, pinning one of the workers between the arrow 

board and truck and killing them both. Stafford was ultimately convicted of 

two counts of reckless operation in a highway work zone causing death and 

sentenced to an aggregate sentence of ten years of incarceration. Stafford 

contends that his one act of reckless driving in a highway work zone cannot 

sustain two convictions, even though it caused two deaths. In light of the 

Indiana Supreme Court’s holding in Kelly v. State, 539 N.E.2d 25 (Ind. 1989), 

we are constrained to agree. Consequently, we reverse in part and remand for 

further proceedings. 

Facts and Procedural History

[2] On the morning of May 9, 2014, DeMoss and Duerson were working for RiethRiley Construction on Interstate 69 north of 82nd Street in Marion County. 

DeMoss had worked for Rieth-Riley for six years and Duerson was completing 

his first day with the company. At approximately 5:30 a.m., Duerson and 

another worker, Jeff Darter, were asked to dismantle an arrow board that had 

been used to divert traffic from a closed lane. Darter hooked the arrow board to 
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the back of a Rieth-Riley truck while Duerson and other workers removed 

placards from the lane that was no longer going to be closed. A safety strobe 

and “[f]our-way flashers” on Darter’s truck were activated, and the light from 

the arrow board was still on. Tr. Vol. II p. 212. 

[3] While completing his work, Darter heard squealing tires and a crash, at which 

point he jumped over a concrete barrier. Darter soon determined that DeMoss 

and Duerson were missing, and ran to the arrow board where they had been 

working. DeMoss and Duerson had been “cut in two[,]” and Darter saw their 

blood and organs. Tr. Vol. II p. 219. A truck driven by Stafford had crashed 

into the back of Darter’s truck with sufficient force to shove the bed of Darter’s

truck into the cab, preventing Darter from opening its doors. Stafford’s truck 

came to rest against the concrete barrier beyond Darter’s truck, with the left 

front tire knocked off and the front end extensively damaged. Indiana State 

Police Trooper Miles Edwards responded and saw that one of the bodies was 

wedged between the arrow board and back of Darter’s truck and was missing 

the left leg, while the other was nearby, cut in half with the upper portion lying 

on the other side of Stafford’s truck. It was determined that Stafford was 

initially travelling at a speed of around seventy-four miles per hour, which had 

slowed to approximately sixty-eight miles per hour by the time he hit Darter’s 

truck. Witnesses recalled that Stafford had not attempted to switch lanes 

despite a visible arrow instructing drivers to do so. 

[4] On November 5, 2015, the Marion County grand jury indicted Stafford on two 

counts of Class C felony reckless operation in a highway work zone causing 
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death and two counts of Class C felony failure to obey traffic control device 

resulting in death. On July 13, 2016, a petit jury found Stafford guilty as 

charged. On August 10, 2016, the trial court vacated the two failure-to-obeytraffic-control-device-resulting-in-death convictions and sentenced Stafford to 

five years of incarceration for each count of reckless operation in a highway 

work zone causing death, to be served consecutively, for an aggregate sentence 

of ten years. 

Discussion and Decision

Whether Stafford’s Conduct May Sustain Two 

Convictions for Reckless Operation in a 

Highway Work Zone Causing Death

[5] Stafford contends that he cannot be convicted of and sentenced for the deaths of 

both DeMoss and Duerson. Although Stafford frames this a challenge based on 

constitutional prohibitions against double jeopardy, it is actually a challenge 

based on statutory interpretation and the Indiana common-law principle that 

one may not be convicted of and punished “for a crime which consists of 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) (citation 

omitted). Stafford contends that because Indiana Code section 9-21-8-56 is 

written as a conduct-based, rather than result-based, statute, his conduct may 

sustain only one conviction, even though there were multiple victims. 
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[6] “The interpretation of a statute is a question of law reserved for the courts.” 

Scott v. Irmeger, 859 N.E.2d 1238, 1239 (Ind. Ct. App. 2007). 

A statute should be construed so as to ascertain and give effect to 

the intention of the legislature as expressed in the statute. In so 

doing, the objects and purposes of the statute in question must be 

considered as well as the effect and consequences of such 

interpretation. When interpreting the words of a single section of 

a statute, this court must construe them with due regard for all 

other sections of the act and with regard for the legislative intent 

to carry out the spirit and purpose of the act. We presume that 

the legislature intended its language to be applied in a logical 

manner consistent with the statute’s underlying policy and goals. 

Rupert v. State, 717 N.E.2d 1209, 1210 (Ind. Ct. App. 1999).

Fuller v. State, 752 N.E.2d 235, 237-38 (Ind. Ct. App. 2001). 

[7] In May of 2014,1Indiana Code 9-21-8-56 provided, in relevant part, as follows:

(b) [A] person who recklessly operates a vehicle in the immediate 

vicinity of a highway work zone when workers are present 

commits a Class A misdemeanor.

....

(h) An offense under subsection (b), (c), (d), or (e) is a Class C 

felony if the offense results in the death of a worker in the 

worksite.

[8] Stafford contends that because Indiana Code section 9-21-8-56 is a crime 

defined by the conduct required to commit it—and not by any particular 

result—two convictions for the same act of reckless driving are prohibited. 

 

1

 Under the current form of the statute, Stafford’s convictions would be for Level 5 felonies. 
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While acknowledging the horrific results of Stafford’s recklessness, precedent 

requires that one of his two convictions be vacated. 

[9] In Kelly v. State, 527 N.E.2d 1148 (Ind. Ct. App. 1988), trans. granted and 

summarily affirmed, 539 N.E.2d 25 (Ind. 1989) (“Kelly I”), we reversed Kelly’s 

conviction for operating a vehicle while intoxicated (“OWI”) causing serious 

bodily injury. Id. at 1155. The intoxicated Kelly was operating a tractor-trailer 

that became involved in an accident resulting in the death of one and the 

serious bodily injury of another. Id. at 1149–50. Kelly was tried and convicted 

of one count of OWI resulting in death and one count of OWI resulting in 

serious bodily injury. Id. at 1155. 

[10] We concluded that Kelly’s two convictions for one act of OWI could not stand: 

The relevant statutes read:

A person who operates a vehicle while intoxicated 

commits a class A misdemeanor.

IC 9-11-2-2 (Burns 1987).

A person who violates [IC 9-11-2-2] commits a class D 

felony if the crime results in serious bodily injury to 

another person.

IC 9-11-2-4 (Burns 1987).

A person who violates [IC 9-11-2-2] commits a class C 

felony if the crime results in the death of another person.

IC 9-11-2-5 (Burns 1987).

In crimes such as murder, manslaughter, battery and reckless 

homicide, the gravamen of the offense is causing the death or 

injury of another person, i.e., the result is part of the definition of 

the crime. Thus, in these offenses where several deaths or 
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injuries occur in the course of a single incident, the offense 

prohibited by statute has been violated several times over. The 

separate victims represent different offenses because conduct has 

been directed at each particular victim.

In contrast, in defining the subject offense, the legislature chose 

to use the result of serious bodily injury or death as a factor 

enhancing the punishment for the crime rather than as an aspect 

of the crime itself, i.e., as part of the definition of the crime. IC 9-

11-2-2 defines the crime as operating a vehicle while intoxicated. 

That definition consists of the prohibited conduct, operating a 

vehicle, and the presence of an attendant circumstance, 

intoxication. It does not include or require the necessary conduct 

produce a specific result. Thus, the crime is committed although 

no specific result occurs. This intent is irrebuttably evidenced by 

the language of IC 9-11-2-4 and 9-11-2-5 which identify the crime 

as a violation of IC 9-11-2-2: “A person who violates [IC 9-11-2-

2] commits a class ... felony if the crime results in....” (emphasis 

added). Thus, we are compelled to conclude Kelly committed 

only one offense of operating a vehicle while intoxicated 

although with multiple results. The multiple egregious results do 

not increase the number of crimes, only the penalty. Had the 

legislature intended otherwise, mechanisms were available to 

express that intent. For example, the crime could have been 

defined as “whoever kills another human being while operating a 

vehicle while intoxicated commits a class C felony.” There, the 

result of the conduct is part of the definition of the crime. An 

alternative approach would have been the enactment of a 

provision stating, in effect, that if more than one person dies 

and/or suffers serious bodily injuries as a result of violating IC 9-

11-2-2, each death and/or serious bodily injury constitutes a 

separately punishable offense. See e.g. Alaska Statutes 11.41.135.

Inasmuch as the expressed intent of the General Assembly is that 

the crime is operating a vehicle while intoxicated, with the result 

(if any) affecting only the penalty, Kelly’s separate convictions, 

arising from the single accident, cannot stand. Therefore we 

must vacate his conviction for the class D felony.
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Id. 

[11] The Indiana Supreme Court granted both parties’ transfer petitions and 

summarily affirmed our disposition. See Kelly v. State, 539 N.E.2d 25, 26 (Ind. 

1989) (“This interpretation of the statute and this application of the statute by 

the Second District is a true reading of the statute.”) (“Kelly II”). The 

distinction between conduct- and result-based crimes has not been abandoned, 

and the Indiana Supreme Court has more recently applied it to reverse all but 

one of a defendant’s many arson convictions, even though the one fire he set 

had injured several persons. See Mathews v. State, 849 N.E.2d 578, 585 (Ind. 

2006) (“Even though the arson caused bodily injury to multiple people, under 

Kelly, Dorsey can be convicted of only one count of arson elevated to a Class A 

felony because of the resulting bodily injury.”). 

[12] Kelly II is clear on the distinction between conduct- and result-based offenses 

and remains the law in Indiana, as declared by the Indiana Supreme Court. It 

is well-settled that

[w]e are bound by the decisions of our supreme court. See In re 

Petition to Transfer Appeals, 202 Ind. 365, 376, 174 N.E. 812, 817 

(1931). Supreme court precedent is binding upon us until it is 

changed either by that court or by legislative enactment. Id. 

While Indiana Appellate Rule 65(A) authorizes this Court to 

criticize existing law, it is not this court’s role to “reconsider” 

supreme court decisions. 

Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002), trans. denied. 
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[13] Turning to Stafford’s challenge, we can discern no meaningful distinction 

between Indiana Code section 9-21-8-56 and the OWI statutes at issue in Kelly

II. In both cases, the crime was complete when certain conduct occurred, 

without regard to results. Indiana Code subsection 9-21-8-56(b) provides that 

“a person who recklessly operates a vehicle in the immediate vicinity of a 

highway work zone when workers are present commits a Class A 

misdemeanor.” As with the former OWI statutes, the crime is comprised of 

prohibited conduct (operating a vehicle recklessly) and attendant circumstances 

(being in the immediate vicinity of a highway work zone with workers present) 

with no particular result required. 

[14] Also like the former OWI statues, bad results serve only to enhance the penalty 

for the conduct proscribed in subsection 9-21-8-56(b). Indeed, the relevant 

language essentially mirrors that of the former OWI statutes in that it makes it 

clear that the crime is complete when subsection 9-21-8-56(b) is violated: “An 

offense under subsection (b) ... is a Class C felony if the offense results in the death 

of a worker in the worksite.” Ind. Code § 9-21-8-56(h) (emphases added). As 

we did in Kelly II, we are compelled to conclude that Stafford committed one 

crime here, albeit one crime with multiple, horrific results. 

[15] It is worth noting that the General Assembly amended the OWI statutes in 

1994 (presumably in response to Kelly II) to allow for multiple convictions when 
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multiple victims of a single act are involved.

2

 See Manns v. State, 637 N.E.2d 

842, 844 n.2 (Ind. Ct. App. 1994) (“Now, each death may be separately 

charged.”). The State argues that this is evidence that the General Assembly 

intends for similar statutes, including Indiana Code section 9-21-8-56, to be 

interpreted as allowing for multiple convictions for a single act. If anything, the 

1994 amendments to the OWI statutes undercuts the State’s argument in this 

case. Because Indiana Code section 9-21-8-56 first became law in 2007—

eighteen years after Kelly II was decided—the much more reasonable conclusion 

is that the General Assembly intended it to be interpreted as a conduct-based

criminal statute. Suffice it to say that we are unpersuaded by the State’s 

argument. 

Conclusion

[16] Pursuant to the binding authority of Kelly II, we are required to vacate one of 

Stafford’s convictions for Class C felony reckless operation in a highway work 

zone causing death. Because we have vacated one of Stafford’s convictions, we 

do not reach his sentence challenge and, instead, remand for resentencing on 

the remaining conviction for Class C felony reckless operation in a highway 

work zone causing death. The trial court will impose the appropriate sentence 

 

2

 Indiana Code section 9-30-5-2 provides that “(a) Except as provided in subsection (b), a person who 

operates a vehicle while intoxicated commits a Class C misdemeanor. (b) An offense described in subsection 

(a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.” Indiana 

Code section 9-30-5-4 elevates the level of the OWI if the perpetrator causes serious bodily injury and 

provides that a separate offense is committed for each victim, and Indiana Code section 9-30-5-5 does the 

same in cases where death results. 
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as it sees fit under the facts of this case and the statutory sentencing range for 

this crime. 

[17] We reverse the judgment of the trial court in part and remand for further 

proceedings consistent with this opinion. 

Baker, J., and Mathias, J., concur.