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                                         Sep 03 2014, 9:14 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                 ATTORNEYS FOR APPELLEE:

MARK K. PHILLIPS                                        GREGORY F. ZOELLER
Boonville, Indiana                                      Attorney General of Indiana

                                                        KATHERINE MODESITT COOPER
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

JARED W. BAEHL,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 87A01-1311-CR-515
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE WARRICK SUPERIOR COURT
                         The Honorable Robert R. Aylsworth, Judge
                              Cause No. 87D02-1210-FD-390


                                        September 3, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

          Jared W. Baehl (“Baehl”) appeals his conviction for Operating a Vehicle While

Intoxicated,1 challenging the sufficiency of the evidence and the admission of certain

evidence at his jury trial. We remand for clarification of the judgment from which Baehl

appeals.

                                       Facts and Procedural History

          On September 27, 2012, Sergeant Matt Tevault of the Chandler Police Department

(“Sergeant Tevault”) initiated a traffic stop of a black truck driven by Baehl. His two small

children were passengers in the truck.

           Sergeant Tevault detected an odor of alcohol and requested that Baehl exit the truck

and perform a series of field sobriety tests. Based upon Baehl’s performance of those tests,

Sergeant Tevault transported Baehl to jail. There, Baehl was administered a Breathalyzer;

his blood alcohol concentration registered as .09.

          The State charged Baehl with Operating a Vehicle While Intoxicated, as a Class D

felony, Operating a Vehicle While Intoxicated, as a Class A misdemeanor, and Operating a

Vehicle with an Alcohol Concentration of .08.

          A jury found Baehl guilty as charged.2 On November 22, 2013, Baehl was sentenced

to one year of imprisonment, with two days credit for time served and the balance suspended

to probation. This appeal ensued.



1
    Ind. Code §§ 9-30-5-2, 9-30-5-3.

2
    Although no verdict forms appear in the Appendix, the verdict forms were read in open court.

                                                      2
                                          Discussion and Decision

           The State alleged that Baehl violated Indiana Code section 9-30-5-2, providing:

           (a) Except as provided in subsection (b), a person who operates a vehicle
               while intoxicated commits a Class C misdemeanor.

           (b) An offense described in subsection (a) is a Class A misdemeanor if the
               person operates a vehicle in a manner that endangers a person.

           The State further alleged that the offense was elevated to a Class D felony,3 pursuant

to Indiana Code Section 9-30-5-3(a)(2)(C), because Baehl, a person over the age of twenty-

one, committed the alleged offense while at least one passenger in the vehicle was less than

eighteen years of age.

           Baehl challenges the sufficiency of the evidence to support his conviction, which he

apparently believes to be a Class A misdemeanor. The State claims that Baehl was convicted

of a Class D felony and that the State presented sufficient evidence to support that

conviction. The record is conflicting.

           On November 5, 2013, when the jury returned its guilty verdicts, the trial court stated:

           Show the Court will enter judgment on verdict on Count I, guilty of Operating
           a Vehicle While Intoxicated Endangering a Person With a Passenger Less
           Than 18 Years of Age. The Court will also enter the verdict on Count III,
           Operating a Vehicle With an ACE of .08% or More. The Court will not enter
           a judgment on Count II, guilty of Operating a Vehicle While Intoxicated
           Endangering a Person. It, in fact, is a lesser-included offense of the offense in
           Count I, so the Court will not enter a judgment of conviction on the verdict
           regarding Count II and will show the judgment on Count I and Count III only,
           as Count II is a lesser-included offense on Count I and of which Mr. Baehl has
           been found guilty by the verdict returned by the jury.


3
    For offenses committed on or after July 1, 2014, the crime is classified as a Level 6 felony.


                                                        3
(Tr. 138.) An order of November 8, 2013 reflected the entry of judgment on Counts I and III,

and set the sentencing hearing for November 22, 2013.

        The Appellant’s Brief contains a copy of an “Order Entry for 11/22/2013” stating that

judgment was entered on Count I as a misdemeanor. Appellant’s Brief at 14-15. A copy of

this order is not included within the Appendix.

        However, the Chronological Case Summary in the Appendix contains an entry for

November 22, 2013, providing in pertinent part:

        Court gives the parties an opportunity to address the court prior to sentencing.
        Court, being duly advised, enters judgment of conviction on Count I, operating
        a vehicle while intoxicated endangering a person with a passenger less than 18
        years of age, as a Class A misdemeanant, and not as a Class D felon. Court
        confirms Count II is a lesser included offense of Count I. Court enters
        judgment of conviction on Count III, operating a vehicle with an ACE of .08
        or more, as a Class C misdemeanor. Court orders Count III merged into Count
        I and sentences defendant on Count I to one year at the Indiana Dept. of
        Correction.

(App. 6.) Our review of the sufficiency of the evidence and the trial court’s evidentiary

rulings is impeded by the lack of clarity as to the offense of which Baehl was convicted.

Accordingly, we remand for clarification.4

        Remanded.

NAJAM, J., and PYLE, J., concur.




4
 We also instruct the trial court, on remand, to vacate the conviction for Count III. A trial court’s act of
merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation. Green v.
State, 856 N.E.2d 703, 704 (Ind. 2006).

                                                      4
