MEMORANDUM DECISION
                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                    Apr 28 2016, 6:22 am

this Memorandum Decision shall not be                          CLERK
                                                           Indiana Supreme Court
regarded as precedent or cited before any                     Court of Appeals
                                                                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
Kimberly A. Jackson                                     Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tanno Sheard,                                           April 28, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1510-CR-1644
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marc T.
Appellee-Plaintiff.                                     Rothenberg, Judge

                                                        The Honorable Amy J. Barbar,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G02-1309-FC-58033



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016   Page 1 of 10
                                       Statement of the Case
[1]   Tanno Sheard appeals his conviction for operating a vehicle while intoxicated,

      causing death, as a Class C felony, following a jury trial. Sheard raises two

      issues on appeal, namely:

              1. Whether the State presented sufficient evidence to support his
                 conviction.


              2. Whether the trial court erred in merging, rather than vacating,
                 counts II, III, and IV into count I.


[2]   We affirm Sheard’s conviction, but we remand with instructions for the trial

      court to clarify whether Sheard continues to have four judgments of conviction

      entered against him.


                                 Facts and Procedural History
[3]   On September 2, 2013, Douglas Levinson and his husband Kevin Woloshyn

      were vacationing in Indianapolis for the holiday weekend. Levinson was

      driving a Pontiac Vibe SUV, and Woloshyn was in the passenger seat, as they

      travelled east on Fall Creek Road. It was after 2:00 a.m. and the two were

      returning to their hotel after dining at a restaurant and then spending some time

      at a bar. Woloshyn had had some alcoholic drinks at the bar, but Levinson had

      had no alcohol that evening.


[4]   As Levinson approached the intersection of Fall Creek and Keystone Avenue

      he saw an ambulance in the left turn lane, stopped at the red light. The

      ambulance, driven by Emergency Medical Technician (“EMT”) Scott Newby
      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016   Page 2 of 10
      of Indianapolis Emergency Medical Services, was waiting to turn north onto

      Keystone Avenue. The other member of the paramedic team for the ambulance

      that night was Joel Rees, who was the passenger. As Levinson approached the

      intersection in his SUV, the light turned from red to green and he proceeded

      through the intersection. Levinson’s vision of oncoming traffic, moving

      southbound on Keystone Avenue, was blocked by the ambulance stopped in the

      left-hand turn lane to Levinson’s left side.


[5]   From where EMT Rees was sitting in the ambulance on the passenger side, he

      could see a red car moving at a high rate of speed southbound on Keystone and

      approaching the intersection with Fall Creek. Rees observed that the car was

      approaching the red light so quickly that it would not be able to stop. Rees

      shouted to Newby who then stopped his approach into the intersection, and the

      red car sped past the ambulance, just missing a collision by one foot. Rees1 and

      Newby then saw the red car collide with Levinson’s SUV just a few feet away

      from the ambulance. Newby and Rees saw that, like them, the SUV had a

      green light at the time.


[6]   Rees called in the accident and requested police and fire assistance. Newby and

      Rees then set to work tending to the four persons2 involved in the collision.

      After doing triage, Rees and Newby determined that the passenger in the




      1
        Rees could not say which car hit the other first, but he was certain that the red car ran the red light and
      collided with the SUV, which had a green light. Newby saw the red car hit the SUV first.
      2
          There was one passenger in the red car.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016                Page 3 of 10
      SUV—Woloshyn—needed the most assistance and they focused on him.

      Meanwhile, Officer Jason Rauch of the Indianapolis Metropolitan Police

      Department and its Fatal Alcohol Crash Team (“FACT”) arrived at the scene

      of the collision and saw the ambulance and Levinson’s SUV, still facing east on

      Fall Creek, with extensive front-end damage. Officer Rauch identified the

      driver of the SUV as Levinson and the passenger of the SUV as Woloshyn.

      Officer Rauch then spoke with Sheard and identified him as the driver of the

      red car, a Chevy Impala.


[7]   Officer Rauch, who had previously investigated approximately 250 operating

      while intoxicated cases, observed no signs of intoxication while speaking with

      Levinson, but he did observe signs of intoxication in Sheard. Specifically,

      Officer Rauch noticed the odor of alcohol coming from Sheard, and he

      observed that Sheard had bloodshot and watery eyes. Officer Rauch asked

      Sheard if he had been drinking alcohol that evening, and Sheard said he had

      had two alcoholic drinks. Officer Rauch then transported Sheard to the police

      station and administered to Sheard the field sobriety test known as the

      Horizontal Gaze Nystagmus Test. This test consists of six “clues,” and if a

      person fails four out of the six clues the person fails the sobriety test. Sheard

      failed all six clues of this test. Officer Rauch then administered to Sheard the

      Certified Breath Test, and, on Sheard’s third try at blowing into the machine, he

      scored a blood alcohol content (“BAC”) of .09 Officer Rauch then arrested

      Sheard.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016   Page 4 of 10
[8]   Meanwhile, Woloshyn had been taken to the hospital where he twice went into

      cardiac arrest. Woloshyn had multiple blunt force trauma to almost all of his

      organs, and he suffered hemorrhaging to his heart, liver, pancreas, kidney,

      spleen, and small intestine. Woloshyn’s injuries caused him to die later that

      night.


[9]   On September 4, 2013, the State charged Sheard with four counts: (1)

      operating a motor vehicle while intoxicated causing death, as a Class C felony;

      (II) operating a motor vehicle with a BAC greater than .08, causing death, as a

      Class C felony; (III) operating a motor vehicle while intoxicated, as a Class A

      misdemeanor; and (IV) operating a motor vehicle with a BAC between .08 and

      .15, a Class C misdemeanor. At the conclusion of Sheard’s two-day trial, the

      jury found him guilty of all four counts. The trial court entered a judgment of

      conviction on all four counts, but it noted that “at the time of

      sentencing . . . we can talk about what needs to merge with what[,] if anything

      does. I think they do merge with each other. But we will enter the jury’s

      verdict at this point.” Tr. at 220-21. At the beginning of the September 23,

      2015, sentencing hearing, the trial court stated that “it looks like to me that

      counts two, three, and four should all merge into count one,” id. at 230, and the

      court then sentenced Sheard to four years of home detention on count I. This

      appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016   Page 5 of 10
                                     Discussion and Decision
                                 Issue One: Sufficiency of the Evidence

[10]   Sheard contends that the State failed to provide sufficient evidence to support

       his conviction on Count I. In reviewing a sufficiency of the evidence claim, we

       neither reweigh the evidence nor assess the credibility of the witnesses. See, e.g.,

       Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the

       probative evidence and reasonable inferences therefrom that support the

       conviction, Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans.

       denied, and we “consider conflicting evidence most favorably to the trial court’s

       ruling,” Wright v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the

       probative evidence and reasonable inferences drawn from that evidence “could

       have allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt.” Jackson, 925 N.E.2d at 375. Pursuant to Indiana Code

       Section 9-30-5-5(a)(3) (2013), to prove that Sheard operated a vehicle while

       intoxicated, causing death, the State was required to prove beyond a reasonable

       doubt that Sheard operated a vehicle while he was intoxicated, and his

       operation of the vehicle caused the death of another person.


[11]   Sheard first asserts that the State failed to prove he was intoxicated. Indiana

       Code Section 9-13-2-86 defines intoxication in pertinent part as being 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.” Impairment can

       be established by evidence of the following: “‘(1) the consumption of a

       significant amount of alcohol; (2) impaired attention and reflexes; (3) watery or

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016   Page 6 of 10
       bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; and

       (6) slurred speech.’” Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009)

       (quoting Fought v. State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008)), adopted by

       929 N.E.2d 196 (Ind. 2010).


[12]   Here, the evidence submitted by the State demonstrated that, at the time of his

       arrest, Sheard had watery, bloodshot eyes and smelled of alcohol. Further,

       Officer Rauch administered a field sobriety test and a Certified Breath Test,

       both of which Sheard failed. Sheard also twice failed to produce a sufficient

       breath sample to properly complete the certified breathalyzer test. And Sheard

       admitted that he had had two alcoholic beverages before he operated his motor

       vehicle. Similar evidence was sufficient to prove intoxication in Outlaw, and it

       is sufficient here. See id. Sheard’s assertions to the contrary are merely requests

       for this court to reweigh the evidence, which we will not do. See Jackson, 925

       N.E.2d at 375.


[13]   Sheard next asserts that the State failed to prove that his operation of his motor

       vehicle caused Woloshyn’s death. To prove the causation element of the crime

       of operating a motor vehicle while intoxicated causing death, the State was

       required to show that Sheard’s operation of a motor vehicle while intoxicated

       was a “substantial cause” of the resulting death, not a mere “contributing”

       cause. Abney v. State, 766 N.E.2d 1175, 1177 (Ind. 2002).


               The court in Abney restated the well-settled rule established in
               Micinski v. State, 487 N.E.2d 150, 154 (Ind. 1986), that the State
               must prove that the defendant’s conduct was a proximate cause

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016   Page 7 of 10
               of the victim’s injury or death. Id. at 1178. But “conduct,” in the
               context of Micinski and Abney, means the driver’s act of operating
               the vehicle, not the particular manner in which the driver
               operates the vehicle. Spaulding v. State, 815 N.E.2d 1039, 1042
               (Ind. Ct. App. 2004).


       Rowe v. State, 867 N.E.2d 262, 268 (Ind. Ct. App. 2007).


[14]   Here, Sheard maintains that the State failed to provide sufficient evidence that

       Sheard “entered the intersection under a red light.” Appellant’s Br. at 14. We

       disagree. The State presented the following evidence that Sheard sped through

       a red light at the intersection and crashed into the SUV, causing the injuries to

       Woloshyn that resulted in his death: (1) Officer Rauch identified Sheard as the

       driver of the red Impala at the scene of the collision; (2) EMT Rees saw

       Sheard’s red Impala approach the intersection and “absolutely could tell” that

       the Impala ran the red light, Tr. at 56; (3) EMT Newby also observed the red

       Impala speeding through the red light; (4) Reese and Newby observed that the

       SUV had the green light; (5) Newby saw the red Impala driven by Sheard

       collide with the SUV; (6) Woloshyn was a passenger in the SUV and died as a

       result of the injuries he suffered from the collision. The State presented

       sufficient evidence to support Sheard’s conviction for operating a vehicle while

       intoxicated, causing death. Again, Sheard’s arguments to the contrary are

       merely requests that we reweigh the evidence.


                              Issue Two: Merger of the Four Convictions

[15]   Sheard contends that the trial court erroneously merged, rather than vacated,

       three of the four counts for which the trial court entered judgments of
       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016   Page 8 of 10
       conviction, and the State does not disagree. 3 Merger of two or more guilty

       verdicts is an oft-used tool by our trial courts to avoid double jeopardy

       violations. E.g., Payton v. State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004), trans.

       denied. However, “the trial court’s act of merging, without also vacating, the

       convictions is not sufficient” to avoid such violations. Id. “Indeed, a double

       jeopardy violation occurs when judgments of conviction are entered and cannot

       be remedied by the ‘practical effect’ of concurrent sentences or by merger after

       conviction has been entered.” Id.


[16]   Here, the trial court entered judgments of conviction against Sheard on all four

       counts and ordered that counts II, III, and IV be merged with count I. Both

       Sheard and the State assert that the trial court’s merger order was based on

       double jeopardy concerns. While the trial judge did not mention double

       jeopardy or any other reason for its merging of counts II, III, and IV with count

       I,4 we agree with the parties that the trial court based the merger on obvious

       double jeopardy concerns. However, while the trial court may have intended to

       vacate the convictions on counts II, III, and IV, the record remains susceptible

       to the conclusion that Sheard stands convicted on those counts, as well as count

       I. See Bunch v. State, 697 N.E.2d 1255, 1257 (Ind. 1998). Accordingly, we




       3
         The State notes on appeal that the trial court did merge all the counts, which would not cure any double
       jeopardy issues, if such exist.
       4
         The Abstract of Judgment and Sentencing Order show only that the convictions on counts II, III, and IV
       are “merged,” not vacated. Appellant's App. at 20, 22.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016            Page 9 of 10
       remand with instructions for the trial court to vacate the convictions on counts

       II, III, and IV.


[17]   Affirmed and remanded with instructions.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1644 | April 28, 2016   Page 10 of 10
