MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Dec 19 2017, 10:30 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Phillips                                        Curtis T. Hill, Jr.
Boonville, Indiana                                      Attorney General of Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy Ottis Hale,                                     December 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        87A04-1706-CR-1501
        v.                                              Appeal from the Warrick Superior
                                                        Court
State of Indiana,                                       The Honorable J. Zach Winsett,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        87D01-1605-F5-192



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017        Page 1 of 12
[1]   Timothy Hale appeals his convictions for Level 4 Felony Causing Death When

      Operating a Vehicle with an ACE1 of .15 or More2 and for Level 5 Felony

      Causing Death When Operating a Vehicle While Intoxicated. 3 Hale argues that

      he received the ineffective assistance of trial counsel. We find that he did not

      receive ineffective assistance, but also sua sponte find that double jeopardy

      principles prohibit both of Hale’s convictions from standing. Therefore, we

      affirm in part, vacate Hale’s Level 5 felony conviction, and remand to the trial

      court with instructions to enter an amended abstract of judgment and an

      amended sentencing order.


                                                         Facts
[2]   On May 5, 2016, Hale was working at home when a friend, James Hopper,

      arrived. Hopper had been drinking whiskey and offered to share; Hale

      accepted. The two men eventually drove to a restaurant to have dinner. While

      at dinner, they each had one or two beers. After dinner, they went to a liquor

      store and bought one bottle of whiskey and one bottle of bourbon. They went

      to the home of some friends. While there, Hale had “at least three or four”

      drinks. Tr. Vol. III p. 116.




      1
          ACE stands for “alcohol concentration equivalent[.]” Ind. Code § 9-30-5-5(a).
      2
          I.C. § 9-30-5-5(c)(1).
      3
          Id. at -5(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017   Page 2 of 12
[3]   Around 8:20 p.m., Hale began driving back home; Hopper was a passenger in

      the vehicle. At some point, Hale’s truck swerved into oncoming traffic, nearly

      striking a vehicle going in the opposite direction. Hale’s truck then swerved

      into a ditch, struck a concrete culvert and a utility pole, and flipped over.

      Hopper died as a result of the crash. Bystanders and responding officers saw

      two partially empty bottles of alcohol in the truck.


[4]   Shortly after the accident, Warrick County Sheriff’s Deputy Kyle Tevault

      arrived at the scene. Deputy Tevault observed that Hale’s speech was

      extremely slurred and noticed a strong odor of alcohol emanating from him.

      Hale was transported to the hospital, where he consented to a blood draw,

      which later revealed his blood alcohol content to be .295. At the hospital,

      Deputy Tevault spoke with Hale. The deputy had difficulty understanding

      Hale because of his slurred speech. Hale admitted that he and Hopper had

      drunk bourbon earlier in the evening and that he had a “fishbowl” of beer at

      dinner. Tr. Vol. II p. 97-98. He admitted that he was driving at the time of the

      accident and that Hopper was in the passenger’s seat.


[5]   Indiana State Trooper Josh Greer, a certified crash reconstructionist, responded

      to the scene. He took photographs and measurements of the vehicle and the

      scene as part of his investigation. Trooper Greer concluded that the truck was

      traveling on the wrong side of the road leading up to the crash. Later, Trooper

      Greer reviewed the truck’s event data recorder, which is analogous to the black

      boxes used on airplanes. Trooper Greer used a Bosch crash data retrieval tool

      to retrieve the information on the event data recorder; the information was

      Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017   Page 3 of 12
      generated in the form of a report, which Trooper Greer used to reconstruct the

      crash. Trooper Greer then prepared his own report. The data regarding the

      truck’s speed and usage of brakes indicated to Trooper Greer that there was a

      “whole lot going on” that indicated driver confusion, with “a whole lot of just

      smacking at the pedals.” Tr. Vol. III p. 37. No other vehicle caused the

      accident; the sole cause was Hale, the operator of the truck.


[6]   On May 10, 2016, the State charged Hale with Level 5 felony causing death

      when operating a motor vehicle while intoxicated and Level 4 felony causing

      death when operating a motor vehicle with an ACE of .15 or more.4 Hale’s jury

      trial took place from May 9 through May 11, 2017. At the trial, a number of

      things occurred that are relevant to this appeal:


          • After the trial had begun, Juror #2596 informed the trial court that he
            had realized that he knew Hopper because they had been neighbors
            about two decades earlier. The juror indicated that it would have no
            impact on his ability to sit on the jury, and he was allowed to remain.
          • Trooper Greer testified about the crash reconstruction. The State did not
            seek to have him qualified as an expert witness.
          • Hale’s attorney moved for a directed verdict at the close of the State’s
            case-in-chief; the trial court denied the motion. Hale’s attorney did not
            renew the motion at the close of the evidence.
          • Hale’s attorney attempted to introduce testimony that in the past,
            Hopper had become intoxicated and attempted to grab steering wheels
            operated by other drivers. The trial court did not permit that line of
            questioning to occur.



      4
        Evidently the State also charged Hale with multiple lesser-included offenses. The trial court ultimately
      vacated the convictions for the lesser-included offenses. The full charging information is not part of the
      record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017           Page 4 of 12
          • Hale’s attorney indicated to the trial court that John King, a former
            police officer, would be called to testify generally about the effectiveness
            of prison as a remedy for certain types of offenses. The trial court refused
            to allow King to testify.

      On May 11, 2017, the jury found Hale guilty as charged. On June 6, 2017, the

      trial court sentenced Hale to concurrent terms of three years imprisonment for

      the Level 5 felony and six years imprisonment for the Level 4 felony. Hale now

      appeals.


                                      Discussion and Decision
                                      I. Assistance of Counsel
[7]   Hale argues that he received the ineffective assistance of trial counsel. 5 A claim

      of ineffective assistance of trial counsel requires a showing that: (1) counsel’s

      performance was deficient by falling below an objective standard of

      reasonableness based on prevailing professional norms; and (2) counsel’s

      performance prejudiced the defendant such that “‘there is a reasonable

      probability that, but for counsel's unprofessional errors, the result of the

      proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

      (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

      reasonable probability arises when there is a ‘probability sufficient to undermine




      5
        Because Hale raises a claim of ineffective assistance of trial counsel in a direct appeal, he is foreclosed from
      raising an ineffectiveness of trial counsel claim in a future post-conviction proceeding. E.g., Jewell v. State,
      887 N.E.2d 939, 941 (Ind. 2008).

      Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017              Page 5 of 12
      confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006) (quoting Strickland, 466 U.S. at 694).


[8]   In this case, Hale argues that his trial counsel was ineffective for the following

      reasons: (1) failing to ask that Juror #2596 be removed; (2) failing to challenge

      Trooper Greer’s expert qualifications (the State did not seek to qualify Trooper

      Greer as an expert); (3) failing to make a second motion for directed verdict;

      (4) trying too hard to get inadmissible specific acts testimony into evidence;

      (5) not trying hard enough to introduce general testimony about the

      effectiveness of prison as a remedy; and (6) not giving a sufficiently persuasive

      closing argument.


                                               1. Juror #2596

[9]   Hale contends that his attorney was ineffective for failing to request that Juror

      #2596 be removed after the juror realized that, nearly two decades earlier, the

      deceased had been his upstairs neighbor. The connection was so attenuated

      that the juror did not even realize he had known Hopper until the State had

      presented three witnesses in its case-in-chief. The juror told the trial court that

      his previous acquaintanceship with Hopper would have no impact on his ability

      to sit on the jury. Under these circumstances, it was reasonable for counsel to

      refrain from asking that the juror be excused. And even if counsel had

      requested the juror’s removal, the trial court would almost certainly have

      denied it. Therefore, we find no ineffectiveness on this basis.




      Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017   Page 6 of 12
                                              2. Trooper Greer

[10]   Hale’s next argument is somewhat unclear. He appears to contend that counsel

       should have objected to Trooper Greer’s qualifications as an expert witness.

       The State, however, did not offer Trooper Greer as an expert witness, instead

       offering him as a skilled witness. Ind. Evidence Rule 701; see also Satterfield v.

       State, 33 N.E.3d 344, 352-53 (Ind. 2015) (noting that “lay and skilled witnesses

       testify from their perceptions” and that “[s]killed witnesses . . . possess

       knowledge beyond that of the average juror”). Consequently, had counsel

       objected to Trooper Greer’s qualifications as an expert witness, the objection

       would have been overruled. We note that counsel did, in fact, object during the

       trooper’s testimony, both to the Bosch report and to the accident reconstruction

       report, and both objections were overruled. We do not find that trial counsel

       was ineffective related to Trooper Greer’s testimony.


                                 3. Second Motion for Directed Verdict

[11]   Trial counsel moved for a directed verdict at the close of the State’s case-in-

       chief, and that motion was denied. Hale argues, however, that counsel should

       have made a second motion for a directed verdict at the conclusion of the

       evidence. He contends, somewhat confusingly, that the State charged him with

       a violation of Indiana Code section 9-30-5-5(b)(1), which makes it a Level 4

       felony to cause death when operating while intoxicated if the driver has a

       previous conviction of operating while intoxicated within the previous ten

       years. According to Hale, his attorney should have moved for a directed verdict

       because the State failed to prove that he had a previous conviction.

       Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017   Page 7 of 12
[12]   It is unclear why he believes that he was charged with this offense—especially

       because he has failed to include the charging information in the appendix—as

       all the evidence and argument at trial, the jury instructions, and the verdict form

       clearly indicate that the State charged him with a violation of Indiana Code

       section 9-30-5-5(c)(1).6 Given the record before us, it is apparent that it would

       have been futile for counsel to have requested a directed verdict on this basis.

       Consequently, counsel was not ineffective for failing to move for a second

       directed verdict.


                                            4. Specific Acts Testimony

[13]   Trial counsel attempted to introduce the testimony of a witness who planned to

       testify that in the past, Hopper had gotten intoxicated and attempted to grab the

       steering wheels of other drivers. The trial court ruled against admitting this

       testimony because a person’s character may not be established by specific acts.

       Ind. Evidence Rules 405, 406. Counsel argued strenuously that this testimony

       constituted admissible habit evidence rather than inadmissible specific acts

       testimony, but the trial court ruled against her. And she continued to attempt

       to introduce this evidence, which she believed was helpful to her client, even

       making an offer to prove. Under these circumstances, we fail to see how

       counsel’s performance was ineffective.




       6
         His belief may be based on an apparent scrivener’s error in the Chronological Case Summary, which
       indicates that he was convicted of a violation of section -5(b)(1). Given the content of the trial, the jury
       instructions, and the verdict form, however, we have no difficulty concluding that this was merely an
       inadvertent error.

       Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017              Page 8 of 12
                                       5. General Prison Testimony

[14]   Counsel indicated to the trial court that she intended to call John King as a

       witness. King is a former police officer, and counsel stated that she anticipated

       that he would testify “that prison does not work for certain types of offenses.”

       Appellant’s Br. p. 15. The State objected, stating that King was not qualified to

       testify on this topic because he was a police officer and did not work inside the

       prison system. The trial court responded that if King’s testimony was not

       specific to Hale, and would be “generally his experience as a police officer and

       how prison sentences don’t work, then I’d have to agree with [the prosecutor]

       that he’s not qualified.” Tr. Vol. IV p. 156. The trial court indicated to counsel

       that she was free to call King to testify, but made it clear that the expected

       testimony would not be admitted. We find no fault in counsel’s decision to

       refrain from calling King to testify, as it is apparent that the action would have

       been futile. Therefore, counsel was not ineffective on this basis.


                                            6. Closing Argument

[15]   Finally, Hale contends that counsel made an inadequate closing argument.

       According to Hale, her argument was too short and did not make a sufficiently

       compelling case. We agree with the State that counsel’s argument, which

       highlighted reasonable doubt and cited to evidence that Hopper caused the

       accident by grabbing and pulling at the wheel, was the best available given the

       overwhelming evidence of her client’s guilt. The length of closing is certainly

       not a barometer by which to gauge an attorney’s effectiveness. Her argument



       Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017   Page 9 of 12
       was short, direct, and made the only possible arguments available to her client.

       We do not find her ineffective in this regard.


[16]   Wholly separate from all the above claimed deficiencies is the following

       evidence supporting Hale’s guilt: he consumed alcohol over the course of the

       afternoon and evening leading up to the crash. Hale himself admitted at trial to

       drinking whiskey, beer, and bourbon that afternoon and evening. Partially

       empty bottles of alcohol were found in Hale’s truck, he admitted to the police

       that he had been drinking bourbon and a “fishbowl” of beer, tr. vol. II p. 97-98,

       and his speech was extremely slurred after the accident. Hale consented to a

       blood draw, which revealed a blood alcohol content of .295. Hale was the

       driver of the truck, which swerved into oncoming traffic and then crashed into a

       ditch, a concrete culvert, and a utility pole. Hopper died as a result of the crash.

       Consequently, all elements of the charged offenses are readily proved by the

       unchallenged evidence: intoxication, blood alcohol content over .15, operation,

       accident, and fatality.


[17]   None of the specific claims of ineffectiveness impact the admission of the above

       evidence, nor does any specific instance of ineffectiveness (or the cumulative

       effect of all the claimed instances) call into question the overwhelming evidence

       supporting Hale’s guilt. Therefore, we find that Hale has established neither

       deficient performance nor prejudice.




       Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017   Page 10 of 12
                                       II. Double Jeopardy
[18]   We are compelled to consider the issue of double jeopardy sua sponte. Indiana’s

       double jeopardy clause was intended to prevent the State from being able to

       proceed against a person twice for the same criminal transgression. Wharton v.

       State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). Our Supreme Court has held

       that two or more offenses are the “same offense,” in violation of our

       Constitution’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) (emphases original). Under the actual evidence test, the “actual evidence

       presented at trial is examined to determine whether each challenged offense

       was established by separate and distinct facts.” Id. at 53.


[19]   Here, Hale was convicted of (1) Level 4 felony causing death when operating a

       vehicle with an ACE of .15 or more; and (2) Level 5 felony causing death when

       operating while intoxicated. We can only conclude that the same behavior—

       operating a vehicle while intoxicated, causing death—formed the basis for both

       convictions. Consequently, the same actual evidence presented at trial

       supported both convictions, and both may not stand. See, e.g., Wharton v. State,

       42 N.E.3d 539 (Ind. Ct. App. 2015) (finding double jeopardy violation where

       defendant was convicted of operating while intoxicated with a prior conviction

       and operating with an ACE of .08 or more with a prior conviction); West v.

       State, 22 N.E.3d 872, 874-75 (Ind. Ct. App. 2014) (finding double jeopardy

       Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017   Page 11 of 12
       violation where defendant was convicted of operating while intoxicated and

       operating with a blood alcohol content of .15 or more).


[20]   A violation of double jeopardy principles requires that we vacate the conviction

       with the less severe penal consequences. E.g., Moala v. State, 969 N.E.2d 1061,

       1065 (Ind. Ct. App. 2012). Therefore, we vacate Hale’s Level 5 felony causing

       death when operating while intoxicated conviction and remand with

       instructions to enter an amended abstract of judgment and an amended

       sentencing order.


[21]   The judgment of the trial court is affirmed in part, vacated in part, and

       remanded with instructions to enter an amended abstract of judgment and an

       amended sentencing order.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A04-1706-CR-1501 | December 19, 2017   Page 12 of 12
