MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                 FILED
regarded as precedent or cited before any                   Mar 29 2017, 10:58 am

court except for the purpose of establishing                     CLERK
                                                             Indiana Supreme Court
the defense of res judicata, collateral                         Court of Appeals
                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                     Curtis T. Hill, Jr.
Oldenburg, Indiana                                     Attorney General of Indiana
                                                       Marjorie Lawyer-Smith
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tin Nung,                                              March 29, 2017
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       49A04-1606-CR-1449
        v.                                             Appeal from the Marion Superior
                                                       Court
State of Indiana,                                      The Honorable Duane E.
Appellee-Plaintiff.                                    Merchant, Judge Pro Tempore
                                                       Trial Court Cause No.
                                                       49G07-1510-CM-37196



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1449 | March 29, 2017   Page 1 of 7
                                      Statement of the Case
[1]   Tin Nung appeals his two convictions for public intoxication, each as a Class B

      misdemeanor, following a bench trial. Nung raises a single issue for our

      review, namely, whether his two convictions are barred by Indiana’s

      prohibitions against double jeopardy. We reverse and remand with

      instructions.


                                 Facts and Procedural History
[2]   On October 19, 2015, Indianapolis Metropolitan Police Department Officer

      Michael Gibson observed a vehicle stopped on Wellwood Road in

      Indianapolis. The stopped vehicle blocked the southbound lane of travel. Cars

      attempting to proceed south on Wellwood Road were forced to drive onto a

      curb to avoid the vehicle.


[3]   Officer Gibson observed Nung seated alone in the vehicle. The vehicle’s

      ignition was off and there was no key in the ignition. Officer Gibson

      immediately detected the smell of alcohol coming from Nung.


[4]   There had been cold weather that day, including freezing rain at one point, and

      Nung was wearing only shorts and a t-shirt. Nung required help getting out of

      the car and nearly fell several times once out of the vehicle. Officer Gibson

      determined that Nung was intoxicated and arrested him.


[5]   On October 19, 2015, the State charged Nung with two counts of public

      intoxication: one for endangering himself, see I.C. § 7.1-5-1-3(a)(1), and one for


      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1449 | March 29, 2017   Page 2 of 7
      endangering the life of another person, see I.C. § 7.1-5-1-3(a)(2). Thereafter, the

      court held Nung’s bench trial, at which Officer Gibson testified. In its closing

      argument, the State asserted:

              [Nung] argued that . . . the endangerment issue was
              the . . . weather. The State would like to point out, that was not
              our argument. That the vehicle being parked in the roadway
              with no key or no way to move the vehicle and [Nung] sitting in
              that vehicle, he was a danger both to himself and everybody else
              on the roadway . . . .


      Tr. at 21. The trial court agreed with the State and found Nung guilty on both

      counts, stating:


              I’m finding that there was endangerment and I’m going to find
              him guilty on both counts. . . . In terms of endangerment, it’s my
              understanding that the vehicle was in the roadway itself. . . . I
              believe that the officer also articulated that there were other
              vehicles in the area . . . . And I believe he articulated that at least
              one vehicle drove on the sidewalk to . . . get by the vehicle. And
              I think that that is a hazardous condition.


      Id. at 23-24. The court then entered judgment against Nung and sentenced him

      to an aggregate term of 180 days imprisonment, with all but two days

      suspended to probation. This appeal ensued.


                                    Discussion and Decision
[6]   Nung asserts on appeal that the entry of two convictions of Class B

      misdemeanor public intoxication violated the actual evidence test under

      Indiana’s Double Jeopardy Clause. Questions of double jeopardy implicate

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1449 | March 29, 2017   Page 3 of 7
      fundamental rights and, as such, may be raised for the first time on appeal, or

      even by this court sua sponte. See Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct.

      App. 2008). Whether convictions violate double jeopardy is a pure question of

      law, which we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct.

      App. 2012), trans. denied.


[7]   Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,

      providing that “[n]o person shall be put in jeopardy twice for the same offense.”

      As our supreme court has explained:


              In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court
              concluded that two or more offenses are the same offense in
              violation of article 1, section 14 if, with respect to either the
              statutory elements of the challenged crimes or the actual evidence
              used to obtain convictions, the essential elements of one
              challenged offense also establish the essential elements of another
              challenged offense. Under the actual evidence test, we examine
              the actual evidence presented at trial in order to determine
              whether each challenged offense was established by separate and
              distinct facts. Id. at 53. To find a double jeopardy violation
              under this test, we must conclude that there is “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 the essential elements of a second
              challenged offense.” Id. The actual evidence test is applied to all
              the elements of both offenses. “In other words . . . the Indiana
              Double Jeopardy Clause 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 v. State, 761 N.E.2d 831,
              833 (Ind. 2002).



      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1449 | March 29, 2017   Page 4 of 7
              Our precedents “instruct that a ‘reasonable possibility’ that the
              jury used the same facts to reach two convictions requires
              substantially more than a logical possibility.” Lee v. State, 892
              N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
              possibility standard “fairly implements the protections of the
              Indiana Double Jeopardy Clause and also permits convictions for
              multiple offenses committed in a protracted criminal episode
              when the case is prosecuted in a manner that insures that
              multiple guilty verdicts are not based on the same evidentiary
              facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a
              “‘reasonable possibility’ turns on a practical assessment of
              whether the [fact-finder] may have latched on to exactly the same
              facts for both convictions.” Lee, 892 N.E.2d at 1236. We
              evaluate the evidence from the [fact-finder’s] perspective and may
              consider the charging information, jury instructions, and
              arguments of counsel. Id. at 1234.


      Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (second-to-last alteration

      original).


[8]   Nung contends that his convictions fail under the actual evidence test because

      the same facts—that he was intoxicated in a vehicle stopped in the middle of a

      road—were used to establish both his conviction for public intoxication on the

      grounds that he endangered himself and his conviction for public intoxication

      on the grounds that he endangered others. The State responds that there is no

      double jeopardy violation here because there was separate evidence to support

      each conviction. Specifically, the State argues that Nung’s attire given the

      weather conditions “created a dangerous situation for himself . . . , which

      satisfies the definition of ‘endanger.’” Appellee’s Br. at 10 (citation omitted).



      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1449 | March 29, 2017   Page 5 of 7
[9]    We reject the State’s reliance on Nung’s attire and the weather conditions,

       which the State itself expressly refused to rely on in the trial court. Again,

       during its closing argument, the State told the court, which was acting as the

       fact-finder, that Nung’s “attire for the weather . . . was not our argument”

       regarding “the endangerment issue.” Tr. at 21. And the trial court, in finding

       Nung guilty as charged, relied on the State’s argument, finding that the State

       demonstrated endangerment by showing that “the vehicle was in the roadway”;

       “there were other vehicles in the area”; and “at least one vehicle drove on the

       sidewalk” to get around Nung, all of which demonstrated “a hazardous

       condition.” Id. at 23-24.


[10]   Thus, in light of the State’s explicit argument and the court’s unambiguous

       reliance on that argument, there is more than a reasonable possibility that the

       trial court relied on the same evidentiary facts to find Nung guilty of both

       offenses—there is no question at all that the court relied on the same

       evidentiary facts. As such, the entry of judgment on both charges violates

       Indiana’s Double Jeopardy Clause.


[11]   Accordingly, we must reverse one of Nung’s two convictions. His convictions

       were both Class B misdemeanors with concurrent sentences. We reverse

       Nung’s conviction on Count II, regarding endangerment to others. We remand

       with instructions for the court to vacate that conviction.


[12]   Reversed and remanded.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1449 | March 29, 2017   Page 6 of 7
Riley, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CR-1449 | March 29, 2017   Page 7 of 7
