MEMORANDUM DECISION                                            FILED
                                                           Jul 21 2016, 9:42 am
Pursuant to Ind. Appellate Rule 65(D),                         CLERK
this Memorandum Decision shall not be                      Indiana Supreme Court
                                                              Court of Appeals
regarded as precedent or cited before any                       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
Jeffrey W. Elftman                                       Gregory F. Zoeller
Bolinger Law Firm                                        Attorney General of Indiana
Kokomo, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jacoby Sanders,                                          July 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         52A02-1511-CR-2061
        v.                                               Appeal from the Miami Superior
                                                         Court
State of Indiana,                                        The Honorable J. David Grund,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         52D01-1312-FB-93



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016    Page 1 of 16
                                                Case Summary
[1]   Jacoby Sanders (“Sanders”) appeals his convictions for Failing to Stop after an

      Accident Resulting in Serious Bodily Injury, a Class B felony,1 Operating a

      Vehicle While Intoxicated Endangering a Person, 2 a Class A misdemeanor,

      Causing Death when Operating a Motor Vehicle while Intoxicated, a Class C

      felony,3 and Failure to Stop after an Accident Resulting in Death, a Class C

      felony.4 We remand with instructions to vacate the Class A misdemeanor

      conviction and the Class C felony convictions, on double jeopardy grounds.

      We affirm the Class B felony conviction for Failing to Stop.



                                                         Issues
[2]   Sanders presents four issues for review:


                  I.       Whether the State presented sufficient evidence that
                           Sanders was intoxicated;


                  II.      Whether the State presented sufficient evidence to support
                           Sanders’ conviction for failing to stop after an accident;




      1
          Ind. Code §§ 9-26-1-1(a)(2), 9-26-1-8(a)(3).
      2
          I.C. §§ 9-30-5-2(a), 9-30-5-2(b).
      3
          I.C. § 9-30-5-5(a)(3).
      4
       I.C. §§ 9-26-1-1(1), 9-26-1-8(a)(3). He does not specifically challenge his conviction for Illegal Consumption
      of an Alcoholic Beverage by a Minor.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016               Page 2 of 16
              III.     Whether the trial court abused its sentencing discretion by
                       recognizing an improper aggravator or ignoring mitigating
                       evidence when imposing the aggregate sentence; and


              IV.      Whether the fifteen-year aggregate sentence, with three
                       years suspended to probation, is inappropriate.


      We sua sponte raise the issue of whether Sanders’ multiple convictions for

      failing to stop after an accident and operating a vehicle while intoxicated violate

      double jeopardy principles.



                            Facts and Procedural History
[3]   During the late evening hours of May 10, 2013, and the early morning hours of

      the next day, twenty-two year old Adam Betzner (“Betzner”) was entertaining a

      group of friends and acquaintances at his parents’ home while they were out-of-

      town. Two of the guests were Sanders, and his best friend, D.J. Rose (“Rose”).

      Other guests included Mark Watkins (“Watkins”), Miranda Worl (“Worl”),

      Terrin Cooper (“Cooper”), and Dakota Rose (“Dakota”).


[4]   Sanders and Rose went to a grocery store to get beer and Jack Daniels whiskey.

      Because both of them were underage, they convinced another customer to get

      the alcohol for them, which they took to the Betzner residence. Watkins

      brought a twelve-pack of beer. Also, some mixed drinks and synthetic

      marijuana known as Spice were available.




      Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 3 of 16
[5]   Shortly after 2:30 a.m. on May 11, Cooper and Watkins left on a forty-five-

      minute round trip to the grocery store. By this time, Dakota was passed out

      and Sanders appeared to Betzner to be intoxicated. When Betzner overheard

      Sanders talking to Rose about going for a drive, Betzner “sternly” warned them

      “they had no business on the road” because they were drunk. (Tr. at 112.) As

      Cooper and Watkins returned from the grocery store, they saw that Worl,

      Sanders, and Rose were preparing to leave. Cooper and Watkins “were trying

      to talk them out of leaving” because Rose and Sanders appeared intoxicated.

      (Tr. at 144.)


[6]   Undeterred, Sanders, Rose, and Worl left the Betzner residence. Sanders was

      driving, Worl was in the front passenger seat, and Rose was in the back seat.

      Minutes later, Sanders disregarded a stop sign and then “just went straight”

      instead of “turning with” a sharp curve in the road. (Tr. at 84.) The vehicle

      went down an embankment and struck a tree.


[7]   The airbags deployed, and Worl was temporarily disoriented. After a while,

      she and Sanders opened their doors and exited the vehicle. Worl realized that

      Rose had not done likewise. She opened a door to find Rose slumped toward

      the window. She pulled until he fell from the vehicle. Sanders came around

      the vehicle and tried to assist, but realized that his own leg was broken. Sanders

      told Worl to “go back and get help.” (Tr. at 86.)


[8]   Worl walked back to the Betzner residence and told Watkins, Cooper, and

      Betzner that there had been an accident. Worl appeared calm and uninjured, so


      Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 4 of 16
       the initial response from the partygoers was that Worl was playing a part in a

       practical joke. After Worl persisted, Cooper and Betzner left to locate the

       wreck. As they drove near the wrecked vehicle, Cooper and Betzner could see

       that it had caught fire and burned.


[9]    Cooper and Betzner called out for Sanders, without response. Betzner went

       down the embankment and found Rose’s body with the feet under the vehicle.

       It was later learned that Rose had died upon impact. However, his body was

       badly burned.


[10]   Cooper called 9-1-1 to report the accident. She pretended to have come upon

       the accident by happenstance and denied seeing anyone near the wreckage. By

       this time, Sanders had crawled toward Cooper’s vehicle. Cooper opened the

       back door, and Sanders crawled into the back seat. Betzner came back up the

       hill and reported that Rose was dead. Cooper then hung up on the 9-1-1

       operator.


[11]   Sanders began yelling “we need to go,” but Betzner told him “you can’t run

       from this.” (Tr. at 163.) After Betzner screamed at Sanders: “he’s dead, you

       killed him he’s dead. DJ’s dead,” Sanders responded: “I don’t give a f--- about

       DJ we just need to get out of here.” (Tr. at 118.) Cooper drove off, with both

       men screaming at each other. Cooper considered taking Sanders to a hospital,

       but honored his request to be taken to his father’s house, which was nearby.




       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 5 of 16
[12]   After he was left with his father, Sanders was taken to Dukes Memorial

       Hospital. At 6:37 a.m., hospital staff drew a sample of Sanders’ blood,

       disclosing an alcohol serum level of 63 mg per deciliter.5


[13]   On December 5, 2013, the State charged Sanders with six counts related to the

       fatal accident. A seventh charge was added on August 17, 2015. Sanders was

       tried before a jury, acquitted of two charges,6 and convicted of five. This appeal

       ensued.



                                   Discussion and Decision
                      Sufficiency of the Evidence – Intoxication
[14]   Sanders challenges each of the convictions requiring proof of intoxication. In

       Count 1, the State alleged that Sanders violated Indiana Code Section 9-26-1-

       1(a)(2) when he failed to stop and render reasonable assistance after he

       committed operating while intoxicated, resulting in serious bodily injury to

       Rose. At that time, Indiana Code Section 9-26-1-8(a)(3) provided that the

       offense of failure to stop was a Class B felony if the person knowingly or

       intentionally failed to stop after committing operating while intoxicated causing

       serious bodily injury. In Count 3, the State alleged that Sanders operated a




       5
        In the opinion of toxicologist George Behonick, assuming all of the alcohol had been absorbed at the time
       of the accident, Sanders’ BAC would have been .093 if the accident occurred at 4:00 a.m., .102 if the accident
       occurred at 3:20 a.m., and .107 if the accident occurred at 3:00 a.m.
       6
        Operating a vehicle with an ACE of .08 or more, a Class C misdemeanor, I.C. § 9-30-5-1, and Causing
       Death when Operating a Motor Vehicle with an ACE of .08 or more, a Class C felony, I.C. § 9-30-5-5.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016              Page 6 of 16
       vehicle while intoxicated, in a manner that endangered a person, in violation of

       Indiana Code Section 9-30-5-2. In Count 6, the State alleged that Sanders

       caused the death of Rose, when operating a motor vehicle while intoxicated, in

       violation of Indiana Code Section 9-30-5-5(a)(3).


[15]   Pursuant to Indiana Code Section 9-13-2-86(1), “intoxicated means 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.” Sanders concedes that

       he was intoxicated at some point during the party, but argues that the State

       failed to show that he was impaired when he was driving.


[16]   When reviewing a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor judge witness credibility. Henley v. State, 881 N.E.2d

       639, 652 (Ind. 2008). We consider only the evidence supporting the judgment

       and the reasonable inferences that can be drawn from that evidence. Id. A

       conviction will be affirmed if there is substantial evidence of probative value

       such that a reasonable trier of fact could have concluded the defendant was

       guilty beyond a reasonable doubt. Id.


[17]   Betzner testified that Sanders had been the heaviest drinker at the party.

       According to Betzner, he confronted Sanders about leaving because Sanders

       appeared intoxicated. Betzner described Sanders as “stumbling, not walking

       straight, acting very belligerent, [and] slurring his words” shortly before Betzner

       noticed that Sanders, Worl, and Rose were missing. (Tr. at 115.) Watkins

       testified that he and Cooper tried to dissuade the trio from leaving because


       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 7 of 16
       Sanders and Rose had been drinking most of the night and Sanders was

       “acting” intoxicated. (Tr. at 54.) Cooper also testified that, as she and Watkins

       came back from the grocery store, they found that Sanders, Rose, and Worl

       were going for a drive and she and Watkins tried to talk them out of leaving.

       Cooper testified that she believed Sanders was intoxicated “not nearly as bad as

       DJ but enough to where he shouldn’t have been driving.” (Tr. at 144.)


[18]   Finally, Dr. George Behonick, a toxicologist, testified regarding his assessment

       of the hospital and law enforcement blood draws. Dr. Behonick opined that

       Sanders would have had a blood alcohol content of between .093 and .107,

       depending upon the time of the accident. Dr. Behonick testified that a person

       begins to show impairment when the person has a BAC of around .05.


[19]   The State presented sufficient evidence to permit the jury to conclude, beyond a

       reasonable doubt, that Sanders was intoxicated when he drove. His contention

       that he attained sufficient sobriety that he was no longer impaired when he

       drove is an invitation to reweigh the evidence. We will not do so.


               Sufficiency of the Evidence – Leaving the Scene
[20]   Sanders was convicted of violating Indiana Code Section 9-26-1-8, which

       provides in pertinent part:


               A person who knowingly or intentionally fails to stop or comply
               with section 1(1) or 1(2) of this chapter after causing injury to a
               person commits a Class A misdemeanor. However, the offense
               is: … a Class C felony if the accident involves the death of a
               person; and a Class B felony if the person knowingly or

       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 8 of 16
               intentionally fails to stop or comply with section 1(1) or 1(2) of
               this chapter after committing operating while intoxicated causing
               serious bodily injury.


[21]   At the time of the fatal accident, Indiana Code Section 9-26-1-1 dictated that a

       driver involved in an accident resulting in injury, death, or entrapment had a

       duty to remain at the scene of the accident until the driver provided

       identification and registration information. Additionally, the driver was

       required [subject to the physical incapability provisions of section 1.5(a) of the

       same chapter] to determine the need for and render reasonable assistance to

       each person injured or entrapped. Finally, the driver was required to

       immediately give notice of the accident by the quickest means of

       communication to law enforcement.


[22]   Sanders points out that his leg was broken, Worl left to report the accident, and

       someone else was driving when he left the scene. Essentially, Sanders argues

       that he did the best he could under the circumstances and should not be held

       criminally liable. However, the State presented evidence that Sanders directed

       the actions of others. Specifically, there was testimony indicating that Sanders

       told Worl to return to the Betzner residence although there was a much closer

       residence. When Cooper and Watkins returned to investigate, “there was

       nobody to be seen” and Sanders did not respond to calls for several minutes.

       (Tr. at 117.) He had crawled across the road “pretty far out in the woods.” (Tr.

       at 117.) When Watkins told Sanders that Rose was dead and urged, “you can’t

       run from this,” Sanders screamed, cursed, and insisted upon leaving. (Tr. at


       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 9 of 16
       163.) As they left, Sanders, Worl, and Cooper were able to hear the sirens from

       approaching emergency vehicles. The immediate availability of emergency

       services undercuts Sanders’ suggestion that he was trying to get to a hospital

       and get medical attention as quickly as possible. At its core, Sanders’ argument

       that he was an injured hemophiliac who attempted substantial statutory

       compliance merely presents an invitation to reweigh the evidence. The State

       presented sufficient evidence that Sanders intentionally failed to comply with

       his duties as a driver involved in a fatal accident.


                                           Double Jeopardy
[23]   The double jeopardy clause of the Indiana Constitution provides, “No person

       shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.

       Our Indiana Supreme Court has held that two or more offenses are the “same

       offense” in violation of Indiana’s double jeopardy clause 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. Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999).


[24]   Aside from the constitutional actual evidence test, our Indiana Supreme Court

       has identified five common law or statutory double jeopardy categories: (1)

       conviction and punishment for a crime which is a lesser-included offense of

       another crime for which the defendant has been convicted and punished, (2)

       conviction and punishment for a crime which consists of the very same act as


       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 10 of 16
       another crime for which the defendant has been convicted and punished, (3)

       conviction and punishment for a crime which consists of the very same act as

       an element of another crime for which the defendant has been convicted and

       punished, (4) conviction 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, and (5)

       conviction and punishment for the crime of conspiracy where the overt act that

       constitutes an element of the conspiracy charge is the very same act as another

       crime for which the defendant has been convicted and punished. Guyton v.

       State, 771 N.E.2d 1141, 1143 (Ind. 2002).


[25]   The second and third categories are implicated here. In Count 1, the State

       alleged that Sanders committed a Class B felony when he failed to stop “after

       committing Operating While Intoxicated Resulting in Serious Bodily Injury

       which resulted in serious bodily injury to Dalton James Rose.” (App. at 14.) In

       Count 7, the State alleged that Sanders committed a Class C felony when he

       failed to stop after “being involved in an accident resulting in death to Dalton

       James Rose.” (App. at 68.) The State presented evidence to establish that

       Sanders, after having committed driving while intoxicated, failed to comply

       with his statutory duties in light of injury to Rose. He was properly convicted

       of a Class B felony. However, the State did not establish that Sanders engaged

       in a separate act supporting the Class C felony, where the Information again

       referenced injury to Rose.




       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 11 of 16
[26]   Sanders’ offense of failure to stop was elevated to a Class B felony upon proof

       that he committed “operating while intoxicated causing serious bodily injury.”

       I.C. 9-26-1-8(a)(3). However, Sanders was also convicted of Count 3, Class A

       misdemeanor Operating While Intoxicated Endangering a Person and Count 6,

       Class C felony Causing Death When Operating a Motor Vehicle While

       Intoxicated.


[27]   As the convictions for Counts 3, 6, and 7 do not rest upon independent facts,

       the multiple convictions cannot stand. We therefore direct the trial court to

       vacate the Class C felony convictions and the Class A misdemeanor conviction.


                              Abuse of Sentencing Discretion
[28]   Upon conviction of a Class B felony, Sanders faced a sentencing range of six to

       twenty years, with the advisory sentence being ten years. I.C. § 35-50-2-5.

       Sanders received a fifteen-year sentence for his Class B felony conviction, with

       three years suspended.


[29]   “So long as the sentence is within the statutory range, it is subject to review

       only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (“Anglemyer II”).

       This includes the finding of an aggravating circumstance and the omission to

       find a proffered mitigating circumstance. Id. at 490-91. When imposing a

       sentence for a felony, the trial court must enter “a sentencing statement that

       includes a reasonably detailed recitation of its reasons for imposing a particular

       sentence.” Id. at 491.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 12 of 16
[30]   The trial court’s reasons must be supported by the record and must not be

       improper as a matter of law. Id. However, a trial court’s sentencing order may

       no longer be challenged as reflecting an improper weighing of sentencing factors.

       Id. A trial court abuses its discretion if its reasons for imposing a particular

       sentence are clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).


[31]   Here, the trial court found Sanders’ youth to be a mitigating circumstance. As

       aggravators, the trial court recognized that Sanders has a criminal history, he was

       on probation at the time of the instant offenses, and he refused to attend substance

       abuse counseling. According to Sanders, the record does not support a finding

       that he refused substance abuse counseling. Additionally, Sanders argues that

       the trial court should have recognized in mitigation that Rose “induced or

       facilitated the offense” and incarceration would result in undue hardship to

       Sanders because of his hemophilia. Appellant’s Br. At 18.


[32]   Sanders acknowledges that he missed a drug counseling appointment the

       morning of the accident. However, he claims that his compliance was

       impossible because he was in the hospital with a broken leg. He does not focus

       upon the testimony that he had missed, and re-scheduled, a prior appointment.

       Nonetheless, even if a trial court has relied upon an improper factor as an

       aggravating circumstance, the sentence may be upheld so long as other valid

       aggravating circumstances exist. Bacher v. State, 722 N.E.2d 799, 803 (Ind.



       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 13 of 16
       2000). Here, other valid aggravators exist. Sanders has a criminal history and

       violated his probation.


[33]   An allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is not only

       supported by the record but also that the mitigating evidence is significant.

       Anglemyer II, 875 N.E.2d at 220-21. The trial court is not obligated to explain

       why it did not find a particular circumstance to be significantly mitigating.

       Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).


[34]   Sanders claims that Rose facilitated the offense. According to Sanders, Rose

       was bored and wanted to go for a ride; Sanders did not “force or coerce” him.

       Appellant’s Br. at 19. Sanders was not charged with a criminal offense

       involving force or coercion. To the extent that Sanders suggests Rose’s

       complicity excused Sanders’ behavior, we disagree. The record reveals that

       Sanders ignored his friends’ warnings, regained his car keys (which had been

       taken away by Worl earlier in the evening), and chose to drive in an impaired

       condition. Rose was not responsible for Sanders’ choices.


[35]   As for hardship during incarceration, Sanders presented evidence of his

       hemophilia. However, there was also evidence presented that the Indiana

       Department of Correction has inmates with this condition and appropriate

       medical resources to manage the condition. Sanders has not demonstrated that

       the trial court abused its sentencing discretion in the recognition of aggravating

       or mitigating circumstances.


       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 14 of 16
                                        Appropriateness of Sentence
[36]   Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In performing our review, we assess “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the

       appellate court that his or her sentence has met th[e] inappropriateness standard

       of review.”’ Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006)).


[37]   As for the nature of the offense, Sanders drove while intoxicated, resulting in

       his best friend’s death. He then crawled away and hid himself in nearby woods.

       When his friends returned, Sanders insisted upon leaving the scene.


[38]   As to the character of the offender, Sanders has a long history of substance

       abuse. He was adjudicated a juvenile delinquent for possessing a controlled

       substance, a Class C felony, if committed by an adult. He was placed on

       probation, which he violated. He was then removed from his mother’s home

       and placed in a youth center. Shortly after he became an adult, Sanders pled

       guilty to criminal mischief. He was on probation at the time he committed the

       present offenses.


       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 15 of 16
[39]   Also, Sanders’ conduct in the aftermath of the fatal accident does not speak

       well of his character. When his friends returned to the accident scene, Sanders’

       concern was for himself. Indeed, he screamed that he didn’t’ “give a f--- about”

       Rose. (Tr. at 118.)


[40]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.



                                               Conclusion
[41]   Sanders’ Class A misdemeanor and Class C felony convictions must be vacated

       on double jeopardy grounds. The State presented sufficient evidence to support

       Sanders’ conviction of the Class B felony. Sanders has not shown that the trial

       court abused its sentencing discretion. The aggregate sentence is not

       inappropriate.


[42]   Affirmed in part; remanded with instructions to vacate the Class A

       misdemeanor and Class C felony convictions.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-2061| July 21, 2016   Page 16 of 16
