MEMORANDUM DECISION Oct 29 2015, 9:58 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Suzy St. John Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA William Craven, October 29, 2015 Appellant-Defendant, Court of Appeals Case No. 49A02-1502-CR-107 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Appellee-Plaintiff. Judge Trial Court Cause No. 49F08-1405-CM- 26546
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 1 of 6 STATEMENT OF THE CASE
[1] Appellant-Defendant, William Craven (Craven), appeals his conviction for
Count I, operating a vehicle while intoxicated in a manner that endangers a
person, a Class A misdemeanor, Ind. Code § 9-30-5-2(b); and Count II,
operating a vehicle with an alcohol concentration of at least 0.08% but less than
0.15%, a Class C misdemeanor, I.C. § 9-30-5-1(a).
[2] We affirm in part, reverse in part, and remand.
ISSUE
[3] Craven raises one issue on appeal, which we restate as follows: Whether
Craven’s conviction for two Counts of driving while intoxicated, one as a Class
A misdemeanor and the other as a Class C misdemeanor, violates Indiana
Code section 35-38-1-6.
FACTS AND PROCEDURAL HISTORY
[4] Shortly before 3:00 a.m. on December 28, 2013, Erika Wells (Wells) was
awakened by a loud noise. When she went to her bedroom window to
investigate, Wells observed a vehicle “doing donuts in the parking lot” of the
nearby golf course clubhouse. (Tr. p. 6). Wells continued watching from her
window as the vehicle—a red GMC pickup truck—pulled out of the parking lot
and traveled “really fast down the road, hit an embankment and flipped upside
down in [her] neighbor’s backyard.” (Tr. pp. 6-7). Wells ran outside to check
on the vehicle’s occupants while another neighbor reported the accident to the
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 2 of 6 Indianapolis Metropolitan Police Department (IMPD). Wells identified
Craven as the driver of the vehicle.
[5] A short time later, IMPD Officer Clinton Ellison (Officer Ellison) arrived on
the scene and observed Craven, who had some minor bleeding and appeared to
be in pain, sitting on the ground next to the overturned truck. Craven’s
passenger was standing nearby. Officer Ellison inquired about the cause of the
accident, and Craven answered “that he was being stupid, that he was driving
too fast, lost control and the crash occurred.” (Tr. p. 25). During their
interaction, Officer Ellison detected the odor of alcohol on Craven’s breath and
also noticed that Craven’s eyes were bloodshot and his speech was slurred.
When asked, Craven admitted that he had consumed alcoholic beverages. Due
to Craven’s injuries, Officer Ellison was unable to conduct field sobriety tests.
Craven was transported to the hospital, where a chemical blood test was
performed which revealed that Craven’s blood alcohol content (BAC) was
within the range of 0.13% to 0.14%. As a result of the accident, Craven
sustained “substantial internal injuries.” (Tr. p. 31).
[6] On May 21, 2014,1 the State filed an Information, charging Craven with Count
I, operating a vehicle while intoxicated in a manner that endangered a person, a
Class A misdemeanor, I.C. § 9-30-5-2(b); and Count II, operating a vehicle with
a BAC equivalent to at least 0.08% but less than 0.15%, a Class C
1 Although the Chronological Case Summary states that the case was filed on May 21, 2014, the file stamp on the Information indicates that the filing date was May 12, 2014.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 3 of 6 misdemeanor, I.C. § 9-30-5-1(a). On January 29, 2015, the trial court
conducted a bench trial and, at the close of the evidence, found Craven guilty on
both Counts. Immediately following its judgment, the trial held a
sentencing hearing. On Count I, the trial court imposed 365 days of probation,
with 275 days suspended and 90 days executed on home detention through
Community Corrections. The trial court stipulated that if Craven completed his
mandatory substance abuse evaluation and treatment and paid his fees prior to
the expiration of the probationary period, his probation would terminate early.
As to Count II, the trial court ordered a concurrent sentence of 90 days
executed on home detention through Community Corrections.
[7] Craven now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Craven claims that his conviction for both Counts of operating while
intoxicated runs afoul of the double jeopardy principles embodied in Indiana
Code section 35-38-1-6.2 Specifically, Craven contends that operating a vehicle
with a BAC of at least 0.08% but less than 0.15%, a Class C misdemeanor, is a
lesser included offense of operating a vehicle while intoxicated in a manner that
endangers a person, a Class A misdemeanor. Therefore, he argues that his
2 Craven does not present a double jeopardy argument based upon the United States or Indiana Constitutions; rather, he “relies solely upon a statutory double jeopardy argument.” Parks v. State, 734 N.E.2d 694, 701 n.9 (Ind. Ct. App. 2000), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 4 of 6 conviction and sentence on the lesser offense must be vacated. The State agrees
with Craven.
[9] Indiana Code section 35-38-1-6 provides that if “a defendant is charged with an
offense and an included offense in separate counts[] and . . . is found guilty of
both counts[,] judgment and sentence may not be entered against the defendant
for the included offense.” This is because a conviction of both an offense and
its lesser included offense is tantamount “to convicting a defendant twice for the
same conduct.” Parks, 734 N.E.2d at 701. Our court has previously
determined that “an offense is a lesser included offense 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) (ellipsis in original) (quoting Sering v. State, 488 N.E.2d
369, 375 (Ind. Ct. App. 1986)) (internal quotation marks omitted).
[10] Indiana’s General Assembly has classified operating a vehicle while intoxicated
in a manner that endangers a person as a Class A misdemeanor, whereas
operating a vehicle with a BAC of at least 0.08% but less than 0.15% is a Class
C misdemeanor. Thus, the legislature has clearly determined that the risk
occasioned by the intoxicated person who drives in a manner that endangers a
person is greater than the risk occasioned by the driver with a BAC of at least
0.08% but less than 0.15%.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Oct 29 2015, 9:58 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Suzy St. John Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA William Craven, October 29, 2015 Appellant-Defendant, Court of Appeals Case No. 49A02-1502-CR-107 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Appellee-Plaintiff. Judge Trial Court Cause No. 49F08-1405-CM- 26546
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 1 of 6 STATEMENT OF THE CASE
[1] Appellant-Defendant, William Craven (Craven), appeals his conviction for
Count I, operating a vehicle while intoxicated in a manner that endangers a
person, a Class A misdemeanor, Ind. Code § 9-30-5-2(b); and Count II,
operating a vehicle with an alcohol concentration of at least 0.08% but less than
0.15%, a Class C misdemeanor, I.C. § 9-30-5-1(a).
[2] We affirm in part, reverse in part, and remand.
ISSUE
[3] Craven raises one issue on appeal, which we restate as follows: Whether
Craven’s conviction for two Counts of driving while intoxicated, one as a Class
A misdemeanor and the other as a Class C misdemeanor, violates Indiana
Code section 35-38-1-6.
FACTS AND PROCEDURAL HISTORY
[4] Shortly before 3:00 a.m. on December 28, 2013, Erika Wells (Wells) was
awakened by a loud noise. When she went to her bedroom window to
investigate, Wells observed a vehicle “doing donuts in the parking lot” of the
nearby golf course clubhouse. (Tr. p. 6). Wells continued watching from her
window as the vehicle—a red GMC pickup truck—pulled out of the parking lot
and traveled “really fast down the road, hit an embankment and flipped upside
down in [her] neighbor’s backyard.” (Tr. pp. 6-7). Wells ran outside to check
on the vehicle’s occupants while another neighbor reported the accident to the
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 2 of 6 Indianapolis Metropolitan Police Department (IMPD). Wells identified
Craven as the driver of the vehicle.
[5] A short time later, IMPD Officer Clinton Ellison (Officer Ellison) arrived on
the scene and observed Craven, who had some minor bleeding and appeared to
be in pain, sitting on the ground next to the overturned truck. Craven’s
passenger was standing nearby. Officer Ellison inquired about the cause of the
accident, and Craven answered “that he was being stupid, that he was driving
too fast, lost control and the crash occurred.” (Tr. p. 25). During their
interaction, Officer Ellison detected the odor of alcohol on Craven’s breath and
also noticed that Craven’s eyes were bloodshot and his speech was slurred.
When asked, Craven admitted that he had consumed alcoholic beverages. Due
to Craven’s injuries, Officer Ellison was unable to conduct field sobriety tests.
Craven was transported to the hospital, where a chemical blood test was
performed which revealed that Craven’s blood alcohol content (BAC) was
within the range of 0.13% to 0.14%. As a result of the accident, Craven
sustained “substantial internal injuries.” (Tr. p. 31).
[6] On May 21, 2014,1 the State filed an Information, charging Craven with Count
I, operating a vehicle while intoxicated in a manner that endangered a person, a
Class A misdemeanor, I.C. § 9-30-5-2(b); and Count II, operating a vehicle with
a BAC equivalent to at least 0.08% but less than 0.15%, a Class C
1 Although the Chronological Case Summary states that the case was filed on May 21, 2014, the file stamp on the Information indicates that the filing date was May 12, 2014.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 3 of 6 misdemeanor, I.C. § 9-30-5-1(a). On January 29, 2015, the trial court
conducted a bench trial and, at the close of the evidence, found Craven guilty on
both Counts. Immediately following its judgment, the trial held a
sentencing hearing. On Count I, the trial court imposed 365 days of probation,
with 275 days suspended and 90 days executed on home detention through
Community Corrections. The trial court stipulated that if Craven completed his
mandatory substance abuse evaluation and treatment and paid his fees prior to
the expiration of the probationary period, his probation would terminate early.
As to Count II, the trial court ordered a concurrent sentence of 90 days
executed on home detention through Community Corrections.
[7] Craven now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Craven claims that his conviction for both Counts of operating while
intoxicated runs afoul of the double jeopardy principles embodied in Indiana
Code section 35-38-1-6.2 Specifically, Craven contends that operating a vehicle
with a BAC of at least 0.08% but less than 0.15%, a Class C misdemeanor, is a
lesser included offense of operating a vehicle while intoxicated in a manner that
endangers a person, a Class A misdemeanor. Therefore, he argues that his
2 Craven does not present a double jeopardy argument based upon the United States or Indiana Constitutions; rather, he “relies solely upon a statutory double jeopardy argument.” Parks v. State, 734 N.E.2d 694, 701 n.9 (Ind. Ct. App. 2000), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 4 of 6 conviction and sentence on the lesser offense must be vacated. The State agrees
with Craven.
[9] Indiana Code section 35-38-1-6 provides that if “a defendant is charged with an
offense and an included offense in separate counts[] and . . . is found guilty of
both counts[,] judgment and sentence may not be entered against the defendant
for the included offense.” This is because a conviction of both an offense and
its lesser included offense is tantamount “to convicting a defendant twice for the
same conduct.” Parks, 734 N.E.2d at 701. Our court has previously
determined that “an offense is a lesser included offense 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) (ellipsis in original) (quoting Sering v. State, 488 N.E.2d
369, 375 (Ind. Ct. App. 1986)) (internal quotation marks omitted).
[10] Indiana’s General Assembly has classified operating a vehicle while intoxicated
in a manner that endangers a person as a Class A misdemeanor, whereas
operating a vehicle with a BAC of at least 0.08% but less than 0.15% is a Class
C misdemeanor. Thus, the legislature has clearly determined that the risk
occasioned by the intoxicated person who drives in a manner that endangers a
person is greater than the risk occasioned by the driver with a BAC of at least
0.08% but less than 0.15%. See Sering, 488 N.E.2d at 376. “Given the disparate
classifications of the two alcohol-related offenses, it is evident that the
legislature intended the [latter] to be a lesser-included offense of the [former].”
Watson, 972 N.E.2d at 384. Although “[t]he State can charge a defendant with
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 5 of 6 both the greater and the lesser included offense, . . . convictions for both
offenses cannot stand.” Hornback v. State, 693 N.E.2d 81, 85 (Ind. Ct. App.
1998). Accordingly, we remand this case to the trial court with instructions to
vacate Craven’s Class C misdemeanor conviction for operating a vehicle with a
BAC of at least 0.08% but less than 0.15%.
CONCLUSION
[11] Based on the foregoing, we affirm Craven’s conviction for Count I and
conclude that Craven’s conviction for Count II, operating a vehicle with a BAC
of at least 0.08% but less than 0.15%, a Class C misdemeanor, violates Indiana
Code section 35-38-1-6 because it is a lesser included offense of operating a
vehicle while intoxicated in a manner that endangers another person, a Class A
misdemeanor.
[12] Affirmed in part, reversed in part, and remanded.
[13] Brown, J. and Altice, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015 Page 6 of 6