Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                            Jun 05 2013, 10:10 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

LAURA M. TAYLOR                                  GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BENNIE GAVIN,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 49A05-1211-CR-00565
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Annie Christ-Garcia, Judge
                            Cause No. 49F24-1107-FD-48508




                                        June 5, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                        Case Summary and Issues

       Bennie Gavin appeals his convictions of operating a vehicle while intoxicated, a

Class D felony, and operating a vehicle with an alcohol concentrate equivalence (“ACE”)

of 0.15 or more, a Class D felony, and his habitual substance offender enhancement.

Gavin raises the following restated issues for our review: 1) whether the evidence was

sufficient to sustain his operating while intoxicated conviction and habitual substance

offender enhancement, and 2) whether his convictions for operating while intoxicated and

operating with an ACE of 0.15 or more violate principles of double jeopardy.

Concluding that the evidence was sufficient but there was a double jeopardy violation, we

affirm in part, reverse in part, and remand.

                                       Facts and Procedural History

       On July 7, 2011, Gavin rear-ended a car driven by Cynthia Goedesky after she

pulled in front of him. Tobias Dennison, a security guard at a nearby food pantry,

approached the crash scene. When he leaned into Gavin’s car to make sure the occupants

of the car1 were okay, he smelled the odor of alcohol. Dennison and Goedesky both

called police to report the accident. About forty-five minutes later, Gavin flagged down

Officer Timothy Elliot who was driving by. Officer Elliot noticed that a strong odor of

alcohol was coming from Gavin’s breath and person, and that he had a “little bit of a

slurred speech,” bloodshot and glassy eyes, and unsteady balance. Transcript at 63.

Gavin told him that he had not been drinking that day but that he had been drinking the

night before. Gavin failed two field sobriety tests and refused to perform a third sobriety

test. Officer Elliot began to read Gavin the Indiana implied consent law but was unable

       1
           There was a female passenger riding along with Gavin.
                                                        2
to finish doing so because Gavin was angry and yelling. Gavin was then arrested and

transported to Wishard Hospital.                  Officer Robert Ferguson read Gavin the implied

consent law at Wishard but Gavin refused to take the chemical test. After obtaining a

warrant, a blood test was performed, showing that Gavin had an alcohol concentration of

0.18 grams per 100 milliliters of blood.

        The State charged Gavin with operating a vehicle while intoxicated in a manner

that endangers a person, as a Class A misdemeanor and as a Class D felony because of a

prior conviction; operating a vehicle with an ACE of 0.15 or more, as a Class A

misdemeanor and as a Class D felony because of a prior conviction; and driving while

suspended, a Class A misdemeanor; and filed an habitual substance offender

enhancement.2 A multi-phase jury trial took place. Gavin testified that he had not had

anything to drink since 2008 and explained that the accident took place due to Goedesky

pulling in front of him suddenly. He also testified that he had a liver condition that

caused his eyes to be red and glassy. Gavin was convicted of operating a vehicle while

intoxicated, a Class D felony,3 and operating a vehicle with an ACE of 0.15 or more, a

Class D felony,4 and determined to be an habitual substance offender.5 The trial court

sentenced Gavin to two years for operating a vehicle while intoxicated and enhanced his



        2
            Gavin was also charged with public intoxication but that charge was dismissed prior to trial.
        3
           The jury found Gavin guilty of the lesser included offense of operating a vehicle while intoxicated, a
Class C misdemeanor, Ind. Code § 9-30-5-2(a), and of operating a vehicle while intoxicated with a prior conviction
of operating while intoxicated, a Class D felony, Ind. Code § 9-30-5-3(a), but the trial court merged these two
counts.
        4
          The jury found Gavin guilty of operating a vehicle with an ACE of 0.15 or more, a Class A misdemeanor,
Ind. Code § 9-30-5-1(b), and of operating a vehicle with an ACE of 0.15 or more with a prior conviction of
operating while intoxicated, a Class D felony, Ind. Code § 9-30-5-3(a), but the trial court merged these two counts.
        5
            The jury found Gavin not guilty of driving while suspended.
                                                           3
sentence by three years for being an habitual substance offender for a total sentence of

five years. Gavin now appeals. Additional facts will be provided as necessary.

                                  Discussion and Decision

                                I. Sufficiency of Evidence


                                  A. Standard of Review


       Our standard of review for sufficiency claims is well-settled. We do not reweigh

the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855,

864 (Ind. Ct. App. 2010), trans. denied. We consider only the probative evidence and

reasonable inferences supporting the verdict. Id. It is not necessary that the evidence

overcome every reasonable hypothesis of innocence; the evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict. Id. We will affirm the

conviction unless no reasonable finder of fact could find the elements of a crime proven

beyond a reasonable doubt. Id.

                              B. Operating While Intoxicated


       Gavin argues that the evidence was insufficient to sustain his conviction of

operating a vehicle while intoxicated in violation of Indiana Code section 9-30-5-2(a).

Intoxication is defined as being “under the influence of (1) alcohol . . . so that there is an

impaired condition of thought and action and the loss of normal control of a person’s

faculties.” Ind. Code § 9-13-2-86. The State is required to establish that the defendant

was impaired, regardless of his blood alcohol content. Fields v. State, 888 N.E.2d 304,

307 (Ind. Ct. App. 2008). Impairment can be established by presenting evidence of the

following:
                                              4
        (1) the consumption of significant amounts of alcohol; (2) impaired
        attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol
        on the breath; (5) unsteady balance; (6) failure of field sobriety tests; (7)
        slurred speech.

Id. at 307 (quoting Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999)).

        Here, the State relied upon the testimony of three witnesses to establish that Gavin

was impaired. Dennison testified that he smelled alcohol when he leaned into Gavin’s

vehicle. Officer Elliot testified that he observed that Gavin had a strong odor of alcoholic

beverage on his breath and person, slurred speech, bloodshot and glassy eyes, and

unsteady balance. Gavin also failed two field sobriety tests administered by Officer

Elliot. Finally, Officer Ferguson testified that he noticed an odor of alcohol coming from

Gavin and that he had slurred speech and watery and bloodshot eyes. This evidence was

sufficient to satisfy the State’s burden of proving that Gavin was intoxicated beyond a

reasonable doubt. See id. at 307-08 (finding evidence that the defendant smelled of

alcohol, had slurred speech, had a dazed look, had red and watery eyes, and failed three

field sobriety tests was sufficient to sustain his operating while intoxicated conviction).

        In his brief, Gavin points to alleged differences between his conduct and that of

the defendant in Staley v. State, 895 N.E.2d 1245 (Ind. Ct. App. 2008), trans. denied.6

He argues that unlike the defendant in Staley, he sought police help after the accident, did

not attempt to elude the police, and did not stagger from or lean on his car during his

interaction with the police. However, the State was not required to prove that Gavin did

not seek help, eluded police, or staggered from the car in order to satisfy its burden of


        6
            We note that in Staley, the defendant was convicted of operating while intoxicated in a manner that
endangered a person, a Class A misdemeanor, 895 N.E.2d at 1251, while, here, the jury found Gavin guilty of the
lesser included offense of operating while intoxicated, a Class C misdemeanor. As noted above, Gavin’s conviction
was elevated to a Class D felony due to his prior operating while intoxicated conviction.
                                                       5
proving that Gavin was intoxicated.7 More importantly, this argument is simply an

invitation for us to reweigh the evidence and assess the credibility of the witnesses, which

we cannot do on appeal. See id. at 1251. The evidence was sufficient to sustain Gavin’s

conviction of operating while intoxicated.

                                      C. Habitual Substance Offender


         Gavin also argues that the State failed to prove that he is an habitual substance

offender. The habitual substance offender statute provides that a person who commits

two prior unrelated substance offenses is subject to a sentence enhancement of three to

eight years upon a conviction for a third unrelated offense. See Ind. Code § 35-50-2-10.

Gavin does not contest that he has two prior unrelated substance offenses. Instead, he

argues that because of the allegedly insufficient evidence supporting his operating while

intoxicated conviction in this case—which was relied upon by the State as the third

unrelated substance offense—his habitual substance offender enhancement cannot stand.

Having concluded that the evidence was sufficient to support Gavin’s operating while

intoxicated conviction, it follows that the evidence was sufficient to prove his habitual

substance offender enhancement. We therefore affirm both convictions.

                                             II. Double Jeopardy


                                            A. Standard of Review


         We generally consider the issue of whether multiple convictions violate double

jeopardy to be a matter of law for de novo review by appellate courts. See Spears v.


         7
           In fact, Officer Elliot testified that Gavin had unsteady balance and that his hand consistently touched his
car as he approached him.
                                                          6
State, 735 N.E.2d 1161, 1166 (Ind. 2000). The analysis of double jeopardy claims under

the Indiana Constitution is governed by Richardson v. State, 717 N.E.2d 32, 50-52 (Ind.

1999), in which our supreme court set forth the statutory elements test and the actual

evidence test. And “[e]ven where no constitutional violation has occurred, multiple

convictions may nevertheless violate the ‘rules of statutory construction and common law

that are often described as double jeopardy, but are not governed by the constitutional test

set forth in Richardson.’” Vandergriff v. State, 812 N.E.2d 1084, 1088 (Ind. Ct. App.

2004) (citing Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)), trans. denied. These

rules fall within five categories, which were first enumerated by Justice Sullivan in his

concurrence in Richardson. See id. at 1088.

                                       B. Same Act


      Gavin argues, and the State concedes, that his convictions for operating while

intoxicated and operating with an ACE of 0.15 or more violate principles of double

jeopardy. While the parties disagree as to which principle of double jeopardy these

convictions violate, we find persuasive the State’s argument that because the same

behavior—operating a vehicle while intoxicated—formed the basis for both convictions,

they fall within the category described by Justice Sullivan in his concurrence in

Richardson as “[c]onviction and punishment for a crime which consists of the very same

act as another crime for which the defendant has been convicted and punished.” 717

N.E.2d at 55 (Sullivan, J., concurring).      A violation of double jeopardy principles

requires that we vacate the conviction with the less severe penal consequences. Moala v.

State, 969 N.E.2d 1061, 1065 (Ind. Ct. App. 2012). In this case, both convictions were


                                              7
Class D felonies, but the trial court did not sentence Gavin for operating a vehicle with an

ACE of 0.15 or more. See id. at 1066 (“the severity of the penal consequences has

largely been determined by the class of crime or by the length of the sentence imposed”).

We therefore remand to the trial court with instructions to vacate the operating with an

ACE of 0.15 or more conviction and leave the operating while intoxicated conviction

standing.

                                        Conclusion

       The evidence was sufficient to sustain Gavin’s operating while intoxicated

conviction and his habitual substance offender enhancement. However, as the State

concedes, his convictions for operating while intoxicated and operating with an ACE of

0.15 or more violate double jeopardy principles. Thus, we reverse and remand with

instructions for the trial court to vacate Gavin’s conviction for operating a vehicle with an

ACE of 0.15 or more, but affirm in all other respects.

       Affirmed in part, reversed in part, and remanded.

FRIEDLANDER, J., and CRONE., J., concur.




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