MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 30 2019, 7:50 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General of Indiana Jeffersonville, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stanley Mark Harris, July 30, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1019 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Joseph P. Weber, Appellee-Plaintiff. Judge Trial Court Cause No. 10C03-1705-CM-844
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 1 of 8 Statement of the Case
[1] Stanley Harris (“Harris”) was convicted by a jury of Class A misdemeanor
operating a vehicle while intoxicated (“OVWI”) causing endangerment and
Class C misdemeanor OVWI.1 On appeal, Harris argues that: (1) the State
presented insufficient evidence to establish venue; and (2) remand is necessary
to correct the sentencing order because the trial court erred when it entered a
judgment of conviction for the lesser-included offense of Class C misdemeanor
OVWI and indicated that the convictions were pursuant to a plea agreement.
Concluding that the State presented sufficient evidence to establish venue and
that remand is necessary, we affirm in part, reverse in part, and remand to the
trial court with instructions.
[2] We affirm in part, reverse in part, and remand.
Issues
1. Whether the State presented sufficient evidence to establish venue.
2. Whether remand is necessary to correct sentencing order errors.
1 IND. CODE § 9-30-5-2.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 2 of 8 Facts
[3] On May 6, 2017, Indiana State Police Trooper Justin Meers (“Trooper Meers”)
was working traffic control on U.S. 31 in southern Indiana. Trooper Meers
parked his vehicle at the base of the Second Street Bridge and was facing
southbound observing traffic leave Kentucky and enter Indiana. Trooper Meers
observed a Ford Taurus cross the Second Street Bridge and “enter the State of
Indiana” on a northbound route. (Tr. 102). The vehicle drove “very far left” of
the double yellow center line to such an extent that “half [of] the vehicle” was
in the southbound lane. (Tr. 102). The vehicle “jerked and swerved” back into
its lane, continued northbound on U.S. 31, and again swerved left of the center
line just shy of a hill crest on that segment of a roadway. (Tr. 102).
[4] Trooper Meers followed the vehicle northbound on U.S. 31 onto Stansifer
Avenue. He subsequently activated his emergency lights near a railroad bridge
on Stansifer Avenue. The driver of the vehicle, Harris, stopped in a parking lot
near the intersection of Stansifer Avenue and Spring Street. Trooper Meers
made contact with Harris and “immediately smelled a very, very strong odor of
alcohol coming from the vehicle.” (Tr. 105).
[5] Harris informed Trooper Meers that he was coming from a bar in Louisville
where he had consumed “several” drinks. (Tr. 106). Trooper Meers then asked
Harris to perform two field sobriety tests, which he failed. Following the tests,
Harris explained that he suffers from C.O.P.D. and would prefer to take a
blood test rather than submit to a breathalyzer. Trooper Meers transported
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 3 of 8 Harris to Clark Memorial Hospital, where he subsequently refused to take the
blood test. Harris was then arrested for OVWI and taken to the Clark County
Jail. When asked on cross-examination why he did not obtain a search warrant
for Harris’ blood, Trooper Meers explained that through his “training and
experience[] [of] working [in] Clark County,” he would not be able to obtain a
search warrant on a run-of-the-mill OVWI. (Tr. 133).
[6] The State charged Harris with Class A misdemeanor OVWI causing
endangerment and Class C misdemeanor OVWI. A jury trial was held on
March 22, 2018, and Trooper Meers was the sole witness. After the State
rested, Harris motioned for a directed verdict “based upon the fact that there
was no proof that [the offenses] occurred in Clark County, Indiana.” (Tr. 135).
After an off-the-record discussion in chambers, the trial court denied the
motion. Thereafter, the jury found Harris guilty of both counts. Following the
jury verdict, the trial court noted that the Class C misdemeanor was “a lesser
included” offense of the Class A misdemeanor. (Tr. 173).
[7] On April 5, 2018, the trial court held a sentencing hearing. At the hearing, the
trial court stated:
We’re here for a sentencing today. This was a result of a jury trial that was held previously, and the jury found Mr. Harris guilty of Count I, Operating a Vehicle While Intoxicated, Endangering a Person, which is a[n] A Misdemeanor, of course. Punishable by a penalty of up to $5000, one year in jail. The second count is a lesser included misdemeanor, C Misdemeanor, rather, Operating While Intoxicated.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 4 of 8 (Tr. 174) (emphasis added). In the “Judgment of Conviction and Sentence”
order dated the same day, the trial court entered a conviction for both offenses
and imposed a one-year suspended sentence to probation, except ninety (90)
days home detention. The trial court also stated:
The Court finds the Defendant pled guilty freely and voluntarily, with full knowledge of rights, and there was a factual basis for such plea(s). The Court accepts the Plea(s), finds the defendant guilty of (each of) the crime(s) to which the Defendant pled guilty and enters Judgement of Conviction for such crime(s).
(App. Vol. 2 at 29). Harris now appeals.
Decision
[8] Harris argues that: (1) the State presented insufficient evidence to establish
venue; and (2) remand is necessary to correct the sentencing order. We address
each of his contentions in turn.
1. Venue
[9] First, Harris argues that the State failed to present sufficient evidence to prove
venue. Specifically, Harris argues that there was no testimony proving that the
offense occurred in Clark County. Conversely, the State maintains that there
was testimony from which a jury could infer that the offense occurred in Clark
County. We agree with the State.
[10] Venue is not an element of the offense. Alkhalidi v. State, 753 N.E.2d 625, 628
(Ind. 2001). Accordingly, the State is required to prove venue by a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 5 of 8 preponderance of the evidence rather than beyond a reasonable doubt. Smith v.
State, 835 N.E.2d 1072, 1074 (Ind. Ct. App. 2005). In other words, the State
was required to prove that Harris more likely than not committed OVWI in
Clark County. See Fry v. State, 990 N.E.2d 429, 448 (Ind. 2013) (explaining
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 30 2019, 7:50 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General of Indiana Jeffersonville, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stanley Mark Harris, July 30, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1019 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Joseph P. Weber, Appellee-Plaintiff. Judge Trial Court Cause No. 10C03-1705-CM-844
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 1 of 8 Statement of the Case
[1] Stanley Harris (“Harris”) was convicted by a jury of Class A misdemeanor
operating a vehicle while intoxicated (“OVWI”) causing endangerment and
Class C misdemeanor OVWI.1 On appeal, Harris argues that: (1) the State
presented insufficient evidence to establish venue; and (2) remand is necessary
to correct the sentencing order because the trial court erred when it entered a
judgment of conviction for the lesser-included offense of Class C misdemeanor
OVWI and indicated that the convictions were pursuant to a plea agreement.
Concluding that the State presented sufficient evidence to establish venue and
that remand is necessary, we affirm in part, reverse in part, and remand to the
trial court with instructions.
[2] We affirm in part, reverse in part, and remand.
Issues
1. Whether the State presented sufficient evidence to establish venue.
2. Whether remand is necessary to correct sentencing order errors.
1 IND. CODE § 9-30-5-2.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 2 of 8 Facts
[3] On May 6, 2017, Indiana State Police Trooper Justin Meers (“Trooper Meers”)
was working traffic control on U.S. 31 in southern Indiana. Trooper Meers
parked his vehicle at the base of the Second Street Bridge and was facing
southbound observing traffic leave Kentucky and enter Indiana. Trooper Meers
observed a Ford Taurus cross the Second Street Bridge and “enter the State of
Indiana” on a northbound route. (Tr. 102). The vehicle drove “very far left” of
the double yellow center line to such an extent that “half [of] the vehicle” was
in the southbound lane. (Tr. 102). The vehicle “jerked and swerved” back into
its lane, continued northbound on U.S. 31, and again swerved left of the center
line just shy of a hill crest on that segment of a roadway. (Tr. 102).
[4] Trooper Meers followed the vehicle northbound on U.S. 31 onto Stansifer
Avenue. He subsequently activated his emergency lights near a railroad bridge
on Stansifer Avenue. The driver of the vehicle, Harris, stopped in a parking lot
near the intersection of Stansifer Avenue and Spring Street. Trooper Meers
made contact with Harris and “immediately smelled a very, very strong odor of
alcohol coming from the vehicle.” (Tr. 105).
[5] Harris informed Trooper Meers that he was coming from a bar in Louisville
where he had consumed “several” drinks. (Tr. 106). Trooper Meers then asked
Harris to perform two field sobriety tests, which he failed. Following the tests,
Harris explained that he suffers from C.O.P.D. and would prefer to take a
blood test rather than submit to a breathalyzer. Trooper Meers transported
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 3 of 8 Harris to Clark Memorial Hospital, where he subsequently refused to take the
blood test. Harris was then arrested for OVWI and taken to the Clark County
Jail. When asked on cross-examination why he did not obtain a search warrant
for Harris’ blood, Trooper Meers explained that through his “training and
experience[] [of] working [in] Clark County,” he would not be able to obtain a
search warrant on a run-of-the-mill OVWI. (Tr. 133).
[6] The State charged Harris with Class A misdemeanor OVWI causing
endangerment and Class C misdemeanor OVWI. A jury trial was held on
March 22, 2018, and Trooper Meers was the sole witness. After the State
rested, Harris motioned for a directed verdict “based upon the fact that there
was no proof that [the offenses] occurred in Clark County, Indiana.” (Tr. 135).
After an off-the-record discussion in chambers, the trial court denied the
motion. Thereafter, the jury found Harris guilty of both counts. Following the
jury verdict, the trial court noted that the Class C misdemeanor was “a lesser
included” offense of the Class A misdemeanor. (Tr. 173).
[7] On April 5, 2018, the trial court held a sentencing hearing. At the hearing, the
trial court stated:
We’re here for a sentencing today. This was a result of a jury trial that was held previously, and the jury found Mr. Harris guilty of Count I, Operating a Vehicle While Intoxicated, Endangering a Person, which is a[n] A Misdemeanor, of course. Punishable by a penalty of up to $5000, one year in jail. The second count is a lesser included misdemeanor, C Misdemeanor, rather, Operating While Intoxicated.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 4 of 8 (Tr. 174) (emphasis added). In the “Judgment of Conviction and Sentence”
order dated the same day, the trial court entered a conviction for both offenses
and imposed a one-year suspended sentence to probation, except ninety (90)
days home detention. The trial court also stated:
The Court finds the Defendant pled guilty freely and voluntarily, with full knowledge of rights, and there was a factual basis for such plea(s). The Court accepts the Plea(s), finds the defendant guilty of (each of) the crime(s) to which the Defendant pled guilty and enters Judgement of Conviction for such crime(s).
(App. Vol. 2 at 29). Harris now appeals.
Decision
[8] Harris argues that: (1) the State presented insufficient evidence to establish
venue; and (2) remand is necessary to correct the sentencing order. We address
each of his contentions in turn.
1. Venue
[9] First, Harris argues that the State failed to present sufficient evidence to prove
venue. Specifically, Harris argues that there was no testimony proving that the
offense occurred in Clark County. Conversely, the State maintains that there
was testimony from which a jury could infer that the offense occurred in Clark
County. We agree with the State.
[10] Venue is not an element of the offense. Alkhalidi v. State, 753 N.E.2d 625, 628
(Ind. 2001). Accordingly, the State is required to prove venue by a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 5 of 8 preponderance of the evidence rather than beyond a reasonable doubt. Smith v.
State, 835 N.E.2d 1072, 1074 (Ind. Ct. App. 2005). In other words, the State
was required to prove that Harris more likely than not committed OVWI in
Clark County. See Fry v. State, 990 N.E.2d 429, 448 (Ind. 2013) (explaining
preponderance standard). Venue may be established by circumstantial
evidence. Bryant v. State, 41 N.E.3d 1031, 1037 (Ind. Ct. App. 2015). Further,
“the State meets its burden of establishing venue if the facts and circumstances
permit the trier of fact to infer that the crime occurred in the given county.”
Eckstein v. State, 839 N.E.2d 232, 233 (Ind. Ct. App. 2005).
[11] The basis of Harris’ argument is that there was insufficient evidence to establish
venue in Clark County. Our review of the record, however, reveals testimony
from which the jury could have inferred that the instant offense did, in fact,
occur in Clark County. At trial, Trooper Meers testified that he was on patrol
on U.S. 31 “right at the base of the Second Street Bridge.” (Tr. 98). Trooper
Meers then observed Harris’ vehicle enter the State of Indiana, and he followed
it northbound on U.S. 31 onto Stansifer Avenue. After Trooper Meers
activated his emergency lights, Harris stopped in a parking lot near the
intersection of Stansifer Avenue and Spring Street. After two failed field
sobriety tests and a refusal to submit to a blood test while at Clark Memorial
Hospital, Harris was transported to the Clark County Jail. Further, when asked
on cross why he did not obtain a search warrant for Harris’ blood, Trooper
Meers explained that through his “training and experience[] [of] working [in]
Clark County,” he would not be able to obtain a search warrant on a run-of-the-
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 6 of 8 mill OVWI. (Tr. 133). We conclude that the circumstantial evidence was
sufficient to allow the trier of fact (jurors from Clark County) to infer that the
crimes more likely than not occurred in Clark County.
2. Lesser-Included Offense
[12] Next, Harris argues that remand is necessary to correct the sentencing order
because the trial court erred when it entered a judgment of conviction for the
lesser-included offense of Class C misdemeanor OVWI and indicated that the
convictions were pursuant to a plea agreement. The State agrees that remand is
necessary.
[13] INDIANA CODE § 35-38-1-6 provides that if “a defendant is charged with an
offense and an included offense in separate counts[ ] and the defendant is found
guilty of both counts[,] judgment and sentence may not be entered against the
defendant for the included offense.” An offense is a lesser included “if it differs
from another ‘only in the respect that a less serious risk of harm to the public
interest is required to establish its commission.’” Watson v. State, 972 N.E.2d
378, 384 (Ind. Ct. App. 2012) (quoting Sering v. State, 488 N.E.2d 369, 375 (Ind.
Ct. App. 1986)).
[14] Here, a jury found Harris guilty of Class A misdemeanor OVWI causing
endangerment and Class C misdemeanor OVWI. Following the trial and
during the sentencing hearing, the trial court acknowledged that the Class C
misdemeanor offense was a lesser-included offense of the Class A
misdemeanor. Despite this acknowledgment, the trial court entered a judgment
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 7 of 8 of conviction for both offenses and also stated that the convictions were the
result of a plea agreement. Accordingly, we remand to the trial court with
instructions to vacate Harris’ Class C misdemeanor conviction and enter a new
“Judgment of Conviction and Sentence” order. We also instruct the trial court
to correct the order to reflect that Harris’ conviction was the result of a jury
trial.
[15] Affirmed in part, reverse in part, and remanded with instructions.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019 Page 8 of 8