MEMORANDUM DECISION FILED Jul 21 2016, 9:42 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey W. Elftman Gregory F. Zoeller Bolinger Law Firm Attorney General of Indiana Kokomo, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jacoby Sanders, July 21, 2016 Appellant-Defendant, Court of Appeals Case No. 52A02-1511-CR-2061 v. Appeal from the Miami Superior Court State of Indiana, The Honorable J. David Grund, Appellee-Plaintiff Judge Trial Court Cause No. 52D01-1312-FB-93
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 1 of 16 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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 2 of 16 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-of-
town. 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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 3 of 16 [5] Shortly after 2:30 a.m. on May 11, Cooper and Watkins left on a forty-five-
minute 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
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 4 of 16 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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 5 of 16 [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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 6 of 16 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
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 7 of 16 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
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 8 of 16 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
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 9 of 16 163.) 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
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 10 of 16 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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 11 of 16 [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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 12 of 16 [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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 13 of 16 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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 14 of 16 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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 15 of 16 [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.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016 Page 16 of 16