MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                        Jan 23 2018, 9:21 am
regarded as precedent or cited before any                                        CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce E. Andis                                           Curtis T. Hill, Jr.
Lawrence County Public Defender                          Attorney General of Indiana
Agency
Bedford, Indiana                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michelle Robin Lord,                                        January 23, 2018
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            47A01-1707-CR-1696
        v.                                                  Appeal from the Lawrence
                                                            Superior Court
State of Indiana,                                           The Honorable William G.
Appellee-Plaintiff                                          Sleva, Judge
                                                            Trial Court Cause No.
                                                            47D02-1503-F6-273



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A01-1707-CR-1696 | January 23, 2018              Page 1 of 8
                                             Case Summary
[1]   Michelle Robin Lord challenges the sufficiency of the evidence to support her

      convictions for level 6 felony operating a vehicle while intoxicated (“OWI”)

      endangering a person and level 6 felony OWI with an alcohol concentration

      equivalent (“ACE”) of .08 or more. We find the evidence sufficient to support

      her OWI convictions. Nevertheless, we review sua sponte the double jeopardy

      implications of Lord’s OWI convictions and, concluding that entry of judgment

      on both convictions violates double jeopardy principles, we affirm her

      conviction for level 6 felony OWI with endangerment but remand with

      instructions to vacate her conviction and sentence for OWI with an ACE of .08

      or more.


                                 Facts and Procedural History
[2]   The evidence most favorable to the verdicts is as follows. At 10:35 p.m. on

      March 10, 2015, Bedford Police Department Major Danny Irwin and Captain

      Raquel Turner responded to a dispatch concerning suspicious people around

      two different houses in a residential area. When they arrived at the scene,

      Major Irwin “saw a vehicle in the neighboring yard which had two (2) people at

      it,” Tr. Vol. 2 at 45, one of whom was Lord. The vehicle had gone over a small

      embankment and was stuck in a grassy area in residual slush, snow, and ice.

      The vehicle was registered to Lord, and Major Irwin observed that the driver’s

      seat was in a position that was further forward than the passenger’s seat. From

      this he inferred that Lord was the driver, as her companion was a taller male.

      When Major Irwin inquired about what happened, Lord admitted that she was

      Court of Appeals of Indiana | Memorandum Decision 47A01-1707-CR-1696 | January 23, 2018   Page 2 of 8
      the driver and had unsuccessfully attempted to turn around. As he conversed

      with Lord, he observed that her speech was slurred, her eyes were bloodshot

      and glassy, and she smelled like an alcoholic beverage. She was covered in

      slush and water and told him that she had fallen three times. Major Irwin

      escorted her up to the pavement, where she underwent standardized field

      sobriety tests and failed all three. She consented to a certified chemical breath

      test, which showed her ACE to be 0.11.


[3]   The officers arrested Lord for OWI and Mirandized her. Lord admitted that

      she had consumed a half pint of vodka and that she had been driving friends

      around that evening. Police found two empty bottles of vodka in Lord’s

      vehicle.


[4]   The State charged Lord with OWI with endangerment 1 and OWI with an ACE

      of 0.08,2 both as level 6 felonies due to her previous OWI conviction. Lord

      admitted to her previous OWI, waiving a jury determination of the issue. The

      jury convicted her as charged. The trial court sentenced her to one year, fully

      suspended to probation.


[5]   Lord now appeals. Additional facts will be provided as necessary.




      1
          Ind. Code § 9-30-5-2(b).
      2
          Ind. Code § 9-30-5-1(a).


      Court of Appeals of Indiana | Memorandum Decision 47A01-1707-CR-1696 | January 23, 2018   Page 3 of 8
                                     Discussion and Decision

       Section 1 – The evidence is sufficient to support Lord’s OWI
                               convictions.
[6]   Lord maintains that the evidence is insufficient to support her OWI

      convictions. When reviewing a challenge to the sufficiency of evidence, we

      neither reweigh evidence nor judge witness credibility. Moore v. State, 27

      N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence and

      reasonable inferences most favorable to the verdict and will affirm the

      conviction unless no reasonable factfinder could find the elements of the crime

      proven beyond a reasonable doubt. Id. Reversal is appropriate only when

      reasonable persons would be unable to form inferences as to each material

      element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.

      2006), trans. denied. The evidence need not “overcome every reasonable

      hypothesis of innocence.” Dalton v. State, 56 N.E.3d 644, 647 (Ind. Ct. App.

      2016 (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)), trans. denied.


[7]   To obtain a conviction for OWI, the State must prove beyond a reasonable

      doubt that the accused operated a vehicle while intoxicated. Ind. Code § 9-30-

      5-2. Here, Lord challenges only the sufficiency of evidence to support the

      temporal element of each of her OWI offenses. In other words, she maintains

      that the State failed to prove that she was operating “while” intoxicated. She

      relies on Flanagan v. State, 832 N.E.2d 1139, 1141 (Ind. Ct. App. 2005), in

      which another panel of this Court held that the State failed to establish when

      the defendant had consumed his alcohol relative to his driving. There, a

      Court of Appeals of Indiana | Memorandum Decision 47A01-1707-CR-1696 | January 23, 2018   Page 4 of 8
      sheriff’s deputy spotted Flanagan and his passenger outside Flanagan’s disabled

      vehicle on the side of the highway and did not stop to assist because he was

      conducting a prisoner transfer at the time. Id. at 1140. However, the deputy

      later returned to the disabled vehicle and found the two men walking toward a

      local convenience store. Id. He offered them a ride, and as they rode in his

      patrol vehicle, he noticed that Flanagan exhibited signs of intoxication. Id.

      Flanagan failed the portable breath test administered shortly thereafter and

      never disputed that he was intoxicated at the time that the deputy encountered

      him walking along the highway. Id. In reversing Flanagan’s OWI conviction,

      the Court emphasized the deputy’s testimony that he did not know how long

      the vehicle had been sitting on the side of the highway before he encountered it.

      Id. at 1141. Even then, the deputy did not stop immediately but returned after

      completing his prisoner transport duty. Id. at 1140. The Flanagan court

      concluded that there was simply no evidence presented as to when the

      defendant consumed alcohol and that it was reasonable to infer that he and his

      passenger drank beer after the vehicle had broken down and then, when they

      ran out of beer, decided to go for help. Id. at 1141.


[8]   We believe that Lord’s circumstances are more akin to those in McCray v. State,

      850 N.E.2d 998, 1001 (Ind. Ct. App. 2006), trans. denied, and Weida v. State, 693

      N.E.2d 598, 600-01 (Ind. Ct. App. 1998), trans. denied, both of which affirmed

      OWI convictions in the face of challenges to the sufficiency of evidence to

      support the temporal element. Both McCray and Weida involved a “reasonably

      defined time period in which the drinking, intoxication, and driving occurred.”

      Court of Appeals of Indiana | Memorandum Decision 47A01-1707-CR-1696 | January 23, 2018   Page 5 of 8
      McCray, 850 N.E.2d at 1001. Weida consumed alcohol at a tavern and then

      crashed his vehicle in a ditch. Weida, 693 N.E.2d at 599. McCray consumed

      alcohol at a bar, picked up her children, intentionally struck her boyfriend’s

      vehicle, drove home, and left the children inside her vehicle. McCray, 850

      N.E.2d at 1001. In both cases, police arrived on the scene within minutes of

      being dispatched. Both the Weida and McCray courts emphasized that it is the

      factfinder’s function to weigh the evidence concerning the temporal element.


[9]   Here, Lord admitted to Captain Turner that she had consumed a half pint of

      vodka at a friend’s house earlier that night, Tr. Vol. 2 at 117, and that she had

      spent the last few hours picking up friends, going to McDonald’s, and driving

      friends home. When she drove over the embankment, her vehicle got stuck in

      the back yard of a residence. A neighbor noticed a disturbance outside and

      notified police. Major Irwin noted that the dispatch time was 10:35 p.m. and

      testified that he responded immediately and arrived in about ten minutes. On

      his arrival, he observed the hallmarks of intoxication in Lord’s looks, odor, and

      behavior. Lord’s chemical breath test, time-stamped 11:34 p.m., showed an

      ACE of 0.11. Forensic toxicologist Sheila Arnold testified that if Lord had

      consumed a half pint of vodka after 10:00 p.m., “you would actually get higher

      than this [0.11] concentration.” Id. at 135. These circumstances implicate a

      more defined timeline than in Flanagan, where there was no evidence as to how

      long Flanagan and his friend had waited by his disabled vehicle before going for

      help (or more beer). 832 N.E.2d at 1141. The jury concluded that Lord drove

      while intoxicated, and Lord’s arguments to the contrary are merely invitations


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       to reweigh evidence and reassess witness credibility, which we may not and will

       not do. See Moore, 27 N.E.3d at 754. The evidence is sufficient to support

       Lord’s OWI convictions.


       Section 2 – We review sua sponte Lord’s OWI convictions and
         remand with instructions to vacate her conviction for OWI
          with an ACE of .08 or more on double jeopardy grounds.
[10]   Even so, we address sua sponte the trial court’s entry of judgment against Lord

       on both OWI convictions. Because double jeopardy violations implicate

       fundamental rights,3 we may review them sua sponte. Hayden v. State, 19

       N.E.3d 831, 842 (Ind. Ct. App. 2014), trans. denied (2015). In Richardson v.

       State, 717 N.E.2d 32, 49 (Ind. 1999), our supreme court set forth the statutory

       elements and actual evidence tests to be applied to double jeopardy claims

       made pursuant to the Indiana Constitution. Where, as here, “no constitutional

       violation has occurred, multiple convictions may nevertheless violate the ‘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.”

       Montgomery v. State, 21 N.E.3d 846, 865 (Ind. Ct. App. 2014), trans. denied

       (2015). One such category is “conviction and punishment for a crime which

       consists of the very same act as another crime for which the defendant has been




       3
         Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice
       for the same offense.” The Fifth Amendment to the United States Constitution provides that no person
       “shall be subject for the same offence to be twice put in jeopardy of life or limb.”

       Court of Appeals of Indiana | Memorandum Decision 47A01-1707-CR-1696 | January 23, 2018             Page 7 of 8
       convicted and punished.” Id. (citing Guyton v. State, 771 N.E.2d 1141, 1143

       (Ind. 2002), and Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring)).


[11]   Here, the jury convicted Lord of OWI with endangerment and OWI with an

       ACE of .08 or more. Our review of the record reveals that both convictions

       were based on the very same act, i.e., Lord drinking vodka and driving her

       vehicle (and passenger) over an embankment. Because Lord’s OWI convictions

       were based on the very same act, entry of judgment on both convictions

       contravenes Indiana’s double jeopardy principles. Ordinarily, a violation of

       double jeopardy principles requires that we vacate the conviction with the least

       severe penal consequences. Moala v. State, 969 N.E.2d 1061, 1065 (Ind. Ct.

       App. 2012). Here, however, both convictions were entered as level 6 felonies.

       As the reviewing court, it is within our discretion to determine which

       conviction should be vacated to remedy a double jeopardy violation. Id. at

       1067. Accordingly, we affirm Lord’s conviction for level 6 felony OWI with

       endangerment and remand with instructions to vacate Lord’s conviction and

       sentence for level 6 felony OWI with an ACE of .08 or more.


[12]   Affirmed and remanded.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A01-1707-CR-1696 | January 23, 2018   Page 8 of 8
