                                                                                  FILED
                                                                              Feb 28 2019, 8:41 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                    Attorney General of Indiana
      Brooklyn, Indiana                                          Caroline G. Templeton
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA
      Jordan B. Wadle,                                           February 28, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-1465
              v.                                                 Appeal from the Fayette Superior
                                                                 Court
      State of Indiana,                                          The Honorable J. Steven Cox,
      Appellee-Plaintiff.                                        Special Judge
                                                                 Trial Court Cause No.
                                                                 21D01-1511-F3-912



      Mathias, Judge.


[1]   Following a jury trial in Fayette Superior Court, Jordan B. Wadle (“Wadle”)

      was convicted of Level 3 felony leaving the scene of an accident, Level 5 felony

      operating a vehicle while intoxicated (“OWI”) causing serious bodily injury,

      Level 6 felony OWI endangering a person, and Class C misdemeanor operating


      Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019                           Page 1 of 16
      a vehicle with an alcohol concentration equivalent (“ACE”) of 0.08 or more.1

      On appeal, Wadle contends that his convictions for leaving the scene of an

      accident and driving while intoxicated constitute impermissible double

      jeopardy.


[2]   We affirm in part, reverse in part, and remand.


                                    Facts and Procedural History
[3]   On November 12, 2015, the victim in this case, Charles Woodward (“Charles”)

      and his wife Nancy went to a bar in Connersville, Indiana with Charles’s

      brother Ed and Ed’s wife Nisa. While Nisa spoke with a friend at the bar,

      Wadle smacked her back. When Nisa objected, Wadle stated that the next time

      he smacked Nisa, he would smack her “lower,” apparently referring to her

      buttocks. Tr. Vol. I, p. 114. Nisa responded that her husband Ed would not like

      it if Wadle smacked her bottom, which prompted Wadle to state that he was

      not afraid of Nisa’s husband and would beat him up. At some point thereafter,

      Nisa informed Ed of Wadle’s behavior and comments. Ed went outside to the

      parking lot to confront Wadle as Wadle prepared to leave. Charles, seeing that




      1
        As explained infra, Wadle was initially charged with Class A misdemeanor operating a vehicle with an
      ACE of 0.15 or more on this count. The State later amended this count, alleging that Wadle committed Class
      C misdemeanor operating a vehicle with an ACE of 0.08 or more. The State also alleged that Wadle had a
      prior conviction for OWI, thereby elevating this charge to a Level 6 felony. The jury found Wadle guilty of
      the Class C misdemeanor, and Wadle admitted to the prior conviction. However, there is no indication in the
      record that the trial court convicted Wadle of the elevated Level 6 felony. Instead, the trial court’s sentencing
      order and abstract of judgment show that Wadle was convicted of a Class A misdemeanor on this count. Yet
      Wadle was not charged with a Class A misdemeanor on this count. Because we ultimately reverse Wadle’s
      conviction on this count due to double jeopardy concerns, any error in his conviction on this count is
      harmless.

      Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019                               Page 2 of 16
      his brother was upset, followed Ed outside.


[4]   When Charles went outside, he saw Ed standing near a group of people that

      included a now-shirtless Wadle. Neither Charles nor anyone else struck Wadle,

      but Wadle attacked Charles by hitting and kicking him. Wadle then got into his

      car and began to back his car out of the parking lot, driving in reverse through

      the group of people that had gathered. Wadle then drove his car at Charles,

      who had turned to re-enter the bar. Wadle struck Charles with his car, knocking

      him to the ground. Charles attempted to get back up, but Wadle struck him

      again, knocking him underneath the guardrail near the outside wall of the bar.

      Wadle drove away, and Ed telephoned 911.

[5]   Local police then began to look for Wadle and soon spotted him a few miles

      outside of Connersville. The police initiated a traffic stop and noted the smell of

      alcohol coming from Wadle. They also noticed that he had bloodshot eyes,

      slurred speech, and was unsteady on his feet. The police took Wadle to a

      hospital for a blood draw, which revealed that Wadle’s blood alcohol level was

      0.14.


[6]   As a result of being hit by Wadle’s car, Charles suffered serious injuries. His

      skull was fractured, and he had bleeding on the brain. Charles had to undergo

      surgery that involved the removal of a portion of his skull and the insertion of a

      metal plate. He also sustained broken ribs, which necessitated two surgeries.

      Charles was placed in an induced coma and spent a total of sixty days in the

      hospital and twenty-one additional days at a rehabilitation center.


      Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019     Page 3 of 16
[7]   On November 16, 2015, the State charged Wadle with Count I, Level 3 felony

      aggravated battery; Count II, Level 3 felony leaving the scene of an accident;

      Count III, Level 6 felony OWI causing serious bodily injury; Count IV, Class A

      misdemeanor OWI endangering a person; and Count V, Class A misdemeanor

      operating a motor vehicle with an ACE of 0.15 or more. On March 1, 2018, the

      State filed amendments to the charging information alleging that Wadle had a

      previous conviction for OWI, thereby elevating Count III to a Level 5 felony

      and Count IV to a Level 6 felony. The State also amended Count V to allege

      that Wadle committed Class C misdemeanor operating a motor vehicle with an

      ACE of 0.08 or more but also filed a Part II to this count, elevating the charge

      to a Level 6 felony based on the prior conviction.


[8]   A bifurcated jury trial took place on March 12–13, 2018. At the conclusion of

      the first phase of the trial, the jury acquitted Wadle on Count I, but found him

      guilty on the remaining counts. Specifically, the jury found Wadle guilty on

      Count II as a Level 3 felony, Count III as a Level 6 felony, Count IV as a Class

      A misdemeanor, and Count V as a Class C misdemeanor. In the second phase

      of the trial, Wadle admitted that he had a prior conviction for OWI and pleaded

      guilty to the enhancements of the charges that were based on his prior

      conviction.

[9]   On May 16, 2018, the trial court sentenced Wadle as follows: Count II, sixteen

      years, with two years suspended to probation; Count III, six years, with two

      years suspended to probation; Count IV, two and one-half years, with two years



      Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019    Page 4 of 16
       suspended to probation; and Count V, one year.2 The court ordered all

       sentences to be served concurrently. Wadle now appeals.

                                         I. The Actual Evidence Test

[10]   Wadle claims that his convictions for OWI and leaving the scene of an accident

       constitute impermissible double jeopardy under the Indiana Constitution.

       Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” In Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999), our supreme court held that “two or more offenses

       are the ‘same offense’ in violation of Article I, Section 14 of the Indiana

       Constitution, 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.” (emphases in original).

[11]   Wadle admits that his convictions do not amount to double jeopardy under the

       “statutory elements” test but contends that his convictions do amount to double

       jeopardy under the Richardson “actual evidence” test. Under the actual evidence

       test, a defendant must demonstrate a reasonable possibility that the evidentiary

       facts used by the fact-finder to establish the essential elements of one offense

       may also have been used to establish all the essential elements of a second

       challenged offense. Singh v. State, 40 N.E.3d 981, 986 (Ind. Ct. App. 2015),



       2
        As noted above, the trial court’s sentencing order and the abstract of judgment show that Wadle was
       convicted of a Class A misdemeanor on this count.

       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019                          Page 5 of 16
       trans. denied, (citing Richardson, 717 N.E.2d at 53). The term “reasonable

       possibility” “turns on a practical assessment of whether the jury may have

       latched on to exactly the same facts for both convictions.” Id. (citing Spivey v.

       State, 761 N.E.2d 831, 832 (Ind. 2002)). The actual evidence test “is not

       violated when the evidentiary facts establishing the essential elements of one

       offense also establish only one or even several, but not all, of the essential

       elements of a second offense.” Spivey, 761 N.E.2d at 833.


[12]   Application of the actual evidence test requires us to identify the essential

       elements of each of the challenged crimes and to evaluate the evidence from the

       jury’s perspective. Singh, 40 N.E.3d at 986 (citing Lee v. State, 892 N.E.2d 1231,

       1234 (Ind. 2008)). “[A] ‘reasonable possibility’ that the jury used the same facts

       to reach two convictions requires substantially more than a logical possibility.”

       Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citing Lee, 892 N.E.2d at

       1236). Accordingly, when reviewing a claim under the actual evidence test, we

       consider the essential elements of the offenses, the charging information, the

       jury instructions, the evidence, and the arguments of counsel. Id. at 720; Singh,

       40 N.E.3d at 986 (both citing Lee, 892 N.E.2d at 1234).


[13]   In the present case, Wadle was convicted of leaving the scene of an accident.

       Pursuant to the controlling statute, a driver involved in an accident must

       generally remain at the scene or as close as possible to the scene of the accident

       until the operator gives his or her name, address, and registration number of the

       vehicle and exhibits his or her driver’s license to any other person involved in

       the accident. Ind. Code § 9-26-1-1.1(a)(1), (2). In addition, if the accident results

       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019      Page 6 of 16
       in injury to another person, the operator shall also provide reasonable assistance

       to the injured person, as directed by law enforcement or medical personnel and

       give notice, or ensure that someone else gives notice, as soon as possible after

       the accident to local police, sheriff’s department, state police, or 911 operators.

       Ind. Code § 9-26-1-1.1(a)(3). A person who knowingly or intentionally fails to

       comply with these requirements commits a Class B misdemeanor. Id. at §

       1.1(b). However, the offense is “a Level 3 felony if the operator knowingly or

       intentionally fails to stop or comply with subsection (a) during or after the

       commission of the offense of operating while intoxicated causing serious bodily injury . . .

       .” Id. at § 1.1(b)(4) (emphasis added).


[14]   Here, pursuant to this statute, Wadle’s conviction for leaving the scene of an

       accident was elevated to a Level 3 felony because he fled the scene of an

       accident after having committed the offense of OWI causing serious bodily

       injury. He was also convicted of OWI causing serious bodily injury. This,

       Wadle claims, violated the actual evidence test. Specifically, Wadle argues that

       when applying the actual evidence test in cases where a base offense has been

       elevated, “one must view the elevation of a felony from its base level almost as

       if the elevation itself were a separate offense under the actual evidence test, such

       that its essential elements cannot be established by the same evidence used to

       establish another offense’s essential elements.” Appellant’s Br. at 14. In other

       words, Wadle argues that if the evidentiary facts supporting the elevation also

       establish all of the elements of another crime, both convictions cannot stand.

[15]   There is support for Wadle’s position in case law from our supreme court. See

       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019             Page 7 of 16
       Wieland v. State, 736 N.E.2d 1198, 1206 (Ind. 2000) (agreeing with State’s

       concession that conviction for conspiracy to commit robbery and robbery, both

       elevated to Class A felonies based upon death of victim, could not stand when

       victim’s death also established elements of felony murder); Spears v. State, 735

       N.E.2d 1161, 1164–65 (Ind. 2000); Grace v. State, 731 N.E.2d 442, 446 (Ind.

       2000); Logan v. State, 729 N.E.2d 125, 136 (Ind. 2000); Lowrimore v. State, 728

       N.E.2d 860, 868 (Ind. 2000); Chapman v. State, 719 N.E.2d 1232, 1234 (Ind.

       1999); Hampton v. State, 719 N.E.2d 803, 809 (Ind. 1999) (all holding that

       convictions for both murder and robbery elevated to a Class A felony

       constituted double jeopardy under the actual evidence test where the evidence

       of serious bodily injury—the victim’s death—was used to both elevate the

       robbery conviction and establish the elements of murder); Johnson v. State, 749

       N.E.2d 1103, 1108 (Ind. 2001) (holding that defendant’s convictions for murder

       and burglary elevated to a Class A felony constituted double jeopardy where the

       evidence of serious bodily injury—the victim’s death—was used to both elevate

       the burglary conviction and establish the elements of murder); Roby v. State, 742

       N.E.2d 505, 509 (Ind. 2001) (holding that defendant’s convictions for murder

       and neglect of a dependent elevated to a Class B felony constituted double

       jeopardy where the same evidence of serious bodily injury was used to both

       elevate the neglect conviction and establish the elements of murder); Mitchell v.

       State, 726 N.E.2d 1228, 1244–45 (Ind. 2000) (same), overruled in part on other

       grounds by Beattie v. State, 924 N.E.2d 643 (Ind. 2010).


[16]   Based upon the holding of these cases, we conclude that the actual evidence test

       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019    Page 8 of 16
       is met, and double jeopardy established, where the evidence establishing the

       elevation of one or more convictions is also used to establish all the elements of

       another conviction.3 And under this analysis, Wadle’s convictions for both

       Level 3 felony leaving the scene of an accident and Level 5 felony OWI causing

       serious bodily injury constitute double jeopardy because the evidence

       establishing the elements of the elevation of the conviction for leaving the scene

       (committing the offense of OWI causing serious bodily injury) was the same

       evidence used to establish the elements of his conviction for OWI causing

       serious bodily injury.4


[17]   In short, the evidentiary facts used to elevate one of Wadle’s convictions were

       also used to establish all the elements of a second conviction. This violates the



       3
         The same is true when multiple convictions are elevated based on the same evidence. See e.g., Boss v. State,
       964 N.E.2d 931, 938 (Ind. Ct. App. 2012); Mendenhall v. State, 963 N.E.2d 553, 572 (Ind. Ct. App. 2012),
       trans. denied; Smith v. State, 881 N.E.2d 1040, 1048 (Ind. Ct. App. 2008); Walker v. State, 758 N.E.2d 563, 567
       (Ind. Ct. App. 2001), trans. denied; Curry v. State, 740 N.E.2d 162, 166–67 (Ind. Ct. App. 2000), trans. denied
       (all holding that actual evidence test was met, and constitutional prohibition against double jeopardy
       violated, where more than one conviction was elevated based on the same evidence).
       4
         Our holding may seem to conflict with some cases that have interpreted the language from Spivey to mean
       that double jeopardy under the actual evidence test is not established unless the evidentiary facts used to
       establish all of the elements of one offense are also used to establish all the elements of another offense. See,
       e.g., Berg v. State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015) (holding that actual evidence test was not met
       where evidentiary facts establishing all the elements of OWI endangering a person did not establish all the
       elements of OWI); Ellis v. State, 29 N.E.3d 792, 798 n.2 (Ind. Ct. App. 2015) (holding that actual evidence
       test was not met where evidentiary facts establishing all the elements of defendant’s conviction for theft did
       not also establish all the elements of his conviction for attempted theft), trans. denied; Zieman v. State, 990
       N.E.2d 53, 60 (Ind. Ct. App. 2013) (holding that actual evidence test was not met where evidentiary facts
       establishing all the elements of defendant’s conviction for attempted murder did not also establish all the
       elements of his conviction for resisting law enforcement resulting in serious bodily injury); see also Garrett, 992
       N.E.2d at 719 (“The actual evidence test is applied to all the elements of both offenses.”). While we would
       welcome clarification of the actual evidence test from our supreme court, we need not address any conflict
       between our holding and these cases, because we also conclude infra that Wadle’s convictions also violate the
       common-law rules against double jeopardy.



       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019                                 Page 9 of 16
       actual evidence test.

                        II. Common-Law Rules Against Double Jeopardy

[18]   In addition to the actual evidence test, Indiana courts have also “long adhered

       to a series of 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.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (citing

       Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)).5 In his concurring

       opinion in Richardson, Justice Sullivan listed five categories of common-law

       rules that prohibit multiple convictions in certain situations. Id. Justice

       Sullivan’s categories were then adopted by the court in Guyton as an adjunct to

       the Richardson constitutional tests. See Guyton, 771 N.E.2d at 1143.


[19]   Included among these categories is one that is applicable here: “‘[c]onviction

       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.’” Id. (quoting Richardson, 717

       N.E.2d at 56). Justice Sullivan’s concurring opinion in Richardson explained

       that:




       5
         Wadle does not specifically argue that his convictions constitute double jeopardy under the Guyton
       common-law double jeopardy rules. But this does not prevent us from analyzing Wadle’s claims under
       Guyton. In fact, the defendant in Guyton only brought an actual evidence claim. See 771 N.E.2d at 1142; id. at
       1145 (Dickson, J., concurring) (noting that defendant argued only that his convictions violated the actual
       evidence test)). Moreover, because questions of double jeopardy implicate fundamental rights, our courts
       routinely address issues of double jeopardy sua sponte. See Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct.
       App. 2015); see also Logan, 729 N.E.2d at 136; Smith, 881 N.E.2d at 1047.

       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019                            Page 10 of 16
                  [i]n situations where a defendant has been convicted of one crime
                  for engaging in the specified additional behavior or causing the
                  specified additional harm, that behavior or harm cannot also be
                  used as an enhancement of a separate crime; either the
                  enhancement or the separate crime [must be] vacated.


       Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring).


[20]   Here, the elevation of Wadle’s leaving the scene conviction was imposed for the

       very same behavior or harm as another crime for which Wadle was convicted.

       That is, the elevation of his conviction for leaving the scene of an accident and

       his conviction for OWI causing serious bodily injury were both based on the

       same act of Wadle striking Charles with his car while driving drunk. This

       violates our common-law prohibitions against double jeopardy.

[21]   The same is true for Wadle’s convictions for OWI endangering a person and

       operating a vehicle with an ACE of 0.08 or more, which were also based on

       same act of drunken driving. The only evidence that Wadle endangered anyone

       while driving drunk was when he struck Charles. And the State made no

       attempt at trial to distinguish the evidence supporting Wadle’s conviction for

       OWI endangering a person from that used to elevate Wadle’s conviction for

       leaving the scene of an accident.6 Nor did the State make any attempt to


       6
           The prosecuting attorney argued in closing argument:
                Instead of driving out of the parking lot, [Wadle] backed up, he angled his car and drove over a
                curb and a median and struck Chuck Woodward twice not once but twice. Jordan Wadle drove
                his car while intoxicated. He admitted having six beers and a shot of tequila. His blood alcohol
                concentration was .14. He certainly operated his car in a manner that endangered another
                person. While he was driving intoxicated he caused seriously bodily injury to Chuck
                Woodward. He fractured Chuck’s skull. He crushed his ribs. Jordan Wadle knowingly failed to


       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019                             Page 11 of 16
       distinguish the evidence supporting the conviction for operating with an ACE

       of 0.08 or more from that used to elevate Wadle’s conviction for leaving the

       scene of an accident. Accordingly, all of Wadle’s convictions for driving while

       intoxicated must be vacated.


[22]   The State claims that Wadle’s convictions for leaving the scene and OWI were

       not based on the same act.7 The State argues that the OWI convictions were

       based on Wadle’s actions in the parking lot, whereas his conviction for leaving

       the scene of an accident was based on his act of leaving the parking lot. See

       Appellee’s Br. p. 11 (“Wadle committed OWI causing serious bodily injury

       before he left the scene of the accident[.]”) (emphasis in original). However,

       Wadle’s conviction for leaving the scene of an accident was elevated based on

       his actions that occurred in the parking lot, and this same act of driving drunk

       in the parking lot was used to support his convictions for driving while

       intoxicated. This is why these convictions violate the common-law rules against

       double jeopardy.

[23]   We therefore conclude that Wadle’s convictions for Level 3 felony leaving the

       scene of an accident, Level 5 felony OWI causing serious bodily injury, Level 6




              stop his vehicle and remain at the scene after he had hit Chuck. He intentionally ran Chuck
              down with [his] car.
       Tr. Vol. 2, p. 75.
       7
         The State concedes that Wadle’s three convictions for driving drunk, i.e., Level 5 felony OWI causing
       serious bodily injury, Level 6 felony OWI endangering a person, and Class C misdemeanor operating a
       vehicle with an ACE of 0.08 or more, constitute double jeopardy because they are all based on a single act of
       driving while intoxicated. Because we reverse these convictions, however, they no longer present any double
       jeopardy concerns.

       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019                           Page 12 of 16
       felony OWI endangering a person, and Class A misdemeanor operating a

       vehicle with an ACE of 0.08 or more are impermissible under Indiana’s

       common-law double jeopardy rules. See Cross v. State, 15 N.E.3d 569, 573 (Ind.

       2014) (holding that defendant’s conviction for carrying a handgun without a

       permit after a felony conviction and the enhancement of his sentence for

       possessing a firearm during the commission of a controlled substance offense

       were both based on evidence that defendant possessed the same handgun and

       therefore constituted double jeopardy under common-law rules set forth in

       Guyton); Springfield v. State, No. 18A-CR-1317, ___ N.E.3d ___, 2018 WL

       6816793, at *4 (Ind. Ct. App. Dec. 28, 2018) (holding that elevation of

       defendant’s convictions for possession of cocaine and possession of a narcotic

       drug, which were elevated based upon defendant’s possession of a firearm,

       violated common-law rules against double jeopardy because the same evidence

       also formed the basis for defendant’s conviction for possession of a firearm by a

       serious violent felon); Vennard v. State, 803 N.E.2d 678, 683 (Ind. Ct. App.

       2004) (holding that defendant’s convictions for both murder and robbery

       elevated to a Class A felony violated common-law rules against double

       jeopardy where the evidence of serious bodily injury was used to elevate the

       robbery conviction and to support murder conviction), trans. denied.


[24]   The State, citing McElroy v. State, 864 N.E.2d 392 (Ind. Ct. App. 2007), trans.

       denied, claims that Wadle’s convictions do not constitute double jeopardy under

       the common-law rules. In McElroy, the defendant was convicted of operating a

       vehicle with a blood alcohol content of at least 0.10 causing death and failure to

       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019   Page 13 of 16
       stop after an accident resulting in death. In the defendant’s petition for post-

       conviction relief, he claimed that his trial counsel was ineffective for failing to

       argue to the sentencing court that his convictions for both crimes were

       impermissible double jeopardy. On appeal from the denial of his petition for

       post-conviction relief, a panel of this court held:


               McElroy has not been punished twice for the same act. Rather,
               he has been punished for one act—causing [the victim]’s death—
               and a second, sequential act—failing to stop after the accident.
               And even though failing to stop after an accident is a more
               serious crime when the accident results in death, it cannot be said
               that the crime is enhanced because of any behavior on the defendant’s
               part. The enhancement is based on the circumstances of the
               accident, i.e., because a death was involved. This represents a
               policy decision by our legislature that failing to stop after an
               accident resulting in death is itself a very serious crime
               completely separate from whether the defendant caused the
               victim’s death. See Ind. Code § 9-26-1-1 (establishing that the
               duty to stop at the scene of an accident arises when a driver is
               “involved” in an accident). Therefore, this is not a case where, as
               Justice Sullivan put it, “a defendant has been convicted of one
               crime for engaging in the specified additional behavior or causing
               the specified additional harm” and that behavior or harm has
               been used as an enhancement of a separate crime.


       Id. at 398 (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)).


[25]   We find McElroy distinguishable. In that case, the defendant was punished for

       two separate acts: (1) causing the victim’s death, and (2) leaving the scene of an

       accident that resulted in a death, which a serious crime in its own right, without

       regard to whether the defendant actually caused the death at issue. Here, if we


       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019      Page 14 of 16
       allowed Wadle’s convictions for OWI causing serious bodily injury and leaving

       the scene after OWI causing serious bodily injury to stand, Wadle would be

       punished twice for the same act—OWI causing serious bodily injury. That is,

       he would be punished by virtue of the standalone OWI-causing-serious-bodily-

       injury conviction, and he would additionally be punished by virtue of the

       elevation of the failure-to-stop conviction to a Level 3 felony. This would be a

       textbook violation of the following common-law rule against double jeopardy:

       “[c]onviction 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.” Guyton, 771 N.E.2d

       at 1143 (quoting Richardson, 717 N.E.2d at 56). Therefore, the two convictions

       cannot stand. And for the reasons already discussed above, the same rationale

       requires the setting aside of the convictions for OWI endangering a person and

       operating a vehicle with an ACE of 0.08 or more.

[26]   In summary, under the common-law test adopted in Guyton, Wadle’s

       convictions for leaving the scene of an accident (as elevated to a Level 3 felony),

       OWI causing serious bodily injury, OWI endangering a person, and operating a

       vehicle with an ACE of 0.08 or more constitute impermissible double jeopardy.

                                                   III. Remedy

[27]   When two convictions are determined to constitute double jeopardy, a

       reviewing court may remedy the violation by reducing either conviction to a

       less serious form of the same offense, if doing so will eliminate the violation, or

       by vacating one of the convictions. Moala v. State, 969 N.E.2d 1061, 1065 (Ind.
       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019    Page 15 of 16
       Ct. App. 2012) (citing Richardson, 717 N.E.2d at 54). In making the

       determination of which conviction to vacate, we are mindful of the penal

       consequences that the trial court found appropriate. Zieman v. State, 990 N.E.2d

       53, 64 (Ind. Ct. App. 2013).

[28]   Here, we reverse Wadle’s convictions for OWI causing serious bodily injury,

       OWI endangering a person, operating a vehicle with an ACE of 0.08 or more,

       and we remand with instructions that the trial court vacate the judgments of

       conviction and sentences entered on these counts. This eliminates any double

       jeopardy issues with these convictions and the conviction for leaving the scene

       of an accident while keeping Wadle’s sentence at sixteen years, with two years

       suspended to probation. This leaves in place Wadle’s conviction and sentence

       for Level 3 felony leaving the scene of an accident.


[29]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1465 | February 28, 2019   Page 16 of 16
