MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                               Sep 09 2015, 8:35 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Suzy St. John                                            Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Xiomara Kyle,                                            September 9, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1501-CR-39
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Allan W. Reid,
Appellee-Plaintiff                                       Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49F10-1403-CM-13264



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015   Page 1 of 9
                                           Case Summary
[1]   Xiomara Kyle appeals her conviction for class A misdemeanor operating while

      intoxicated (“OWI”) with endangerment (“Count I”). She challenges the trial

      court’s admission of her statement to police that she was the driver of the

      crashed vehicle. She also contends that she was deprived of her constitutional

      protection against double jeopardy when the trial court failed to vacate her

      conviction of one count of operating a vehicle with a blood alcohol

      concentration (“BAC”) above 0.15% (“Count II”). We affirm her conviction

      on Count I and remand with instructions to clarify the abstract of judgment to

      specify that the judgment of conviction for Count II was either vacated or never

      entered.


                              Facts and Procedural History
[2]   On March 13, 2014, Kyle went to a casino with her friends Jackie and Michael

      Dodd. The group traveled in the Dodds’ vehicle, and by the time they left the

      casino around 2:00 a.m., Kyle had consumed multiple alcoholic beverages. On

      the trip home, shortly after 4:00 a.m., the vehicle crashed into a barrier wall

      along Interstate 465 and was positioned such that the driver’s side doors could

      not be opened.


[3]   At 4:26 a.m., Indiana State Trooper Stephon Mason was dispatched to the

      accident scene. On arrival, he saw Jackie emerge from the back passenger’s

      seat and observed Kyle climbing from the driver’s seat to the front passenger’s

      seat with help from Michael, who was outside the vehicle. When Trooper

      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015   Page 2 of 9
      Mason asked who had been driving, Jackie and Michael denied driving, and

      Kyle admitted that she had been the driver. She told the officer that she had

      crashed the vehicle while experiencing a seizure and that she had broken her

      hip. She also told him that she had consumed alcoholic beverages. Trooper

      Mason observed that she had glassy, red eyes and slurred speech and smelled

      like an alcoholic beverage. Kyle was transported to a local hospital, where she

      consented to a blood draw. At 6:09 a.m., her BAC registered at 0.25%.


[4]   The State charged Kyle with Count I class A misdemeanor OWI with

      endangerment and Count II class A misdemeanor operating a vehicle with a

      BAC above 0.15%. The trial court found her guilty as charged, but pursuant to

      the State’s request, the court indicated that Count II would merge with Count I.

      The trial court sentenced her only on Count I. Kyle now appeals. Additional

      facts will be provided as necessary.


                                  Discussion and Decision

      Section 1 – The trial court acted within its discretion in
        admitting the officer’s testimony concerning Kyle’s
                confession that she was the driver.
[5]   Kyle challenges the trial court’s admission of her statement to Trooper Mason

      that she was driving the vehicle when it crashed. In recognition of the trial

      court’s broad discretion when ruling on the admissibility of evidence, we

      reverse those rulings only when the trial court has abused its discretion.

      Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013). An abuse of discretion


      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015   Page 3 of 9
      occurs where the trial court’s decision is against the logic and effect of the facts

      and circumstances before it. Id.


[6]   At the outset, we address the State’s argument that Kyle waived her challenge

      to the admissibility of her confession by failing to raise a contemporaneous

      objection at trial and failing to raise it as fundamental error on appeal. See

      Rhodes v. State, 996 N.E.2d 450, 454 (Ind. Ct. App. 2013) (finding waiver where

      defendant failed to make contemporaneous objection or otherwise demonstrate

      fundamental error); see also Hollingsworth v. State, 987 N.E.2d 1096, 1098-99

      (Ind. Ct. App. 2013) (finding waiver where appellant failed to present cogent

      argument on fundamental error in brief), trans. denied. Although we agree with

      the State that ordinarily waiver would apply where the defendant failed to

      object at trial and has failed to raise the issue as fundamental error on appeal,

      we note that Kyle challenges the admission of her confession within the context

      of her primary argument that the State failed to establish the corpus delicti, or

      “body or material substance of the crime.” Harkrader v. State, 553 N.E.2d 1231,

      1233 (Ind. Ct. App. 1990), trans. denied.


[7]   As used in criminal law, the corpus delicti refers to the “the fact that a crime

      has been committed” by someone. Hunt v. State, 216 Ind. 171, 178, 23 N.E.2d

      681, 684 (1939). The rationale behind the rule is to prevent convictions based

      solely on a defendant’s extrajudicial confession to a crime without adequate

      corroboration that a crime was committed at all. Jones v. State, 253 Ind. 235,

      244, 252 N.E.2d 572, 577 (1969), cert. denied (1977).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015   Page 4 of 9
[8]   “The corpus delicti need not be established prior to admission of the confession so long

      as the totality of independent evidence presented at trial establishes it.” Winters

      v. State, 727 N.E.2d 758, 762 (Ind. Ct. App. 2000), trans. denied (emphasis

      added). Because the stringent rules concerning the order of proof have been

      “abrogated by this Court,” the State is permitted to offer testimony concerning

      a defendant’s confession before establishing the corpus delicti. Williams v. State,

      837 N.E.2d 615, 618 (Ind. Ct. App. 2005), trans. denied (2006). The State can

      establish the corpus delicti at any time during its case-in-chief “by independent

      evidence from which an inference may be drawn that a crime was committed.”

      Winters, 727 N.E.2d at 762.


[9]   Here, Kyle requested dismissal after the State’s case-in-chief, claiming that the

      State had failed to establish the corpus delicti and that its case could not be

      predicated solely upon her confession to Trooper Mason. See Hunt, 216 Ind. at

      178, 23 N.E.2d at 684 (“the mere extrajudicial admission or confession of the

      accused, uncorroborated by other evidence, will not establish the corpus

      delicti.”). Within the limited context of establishing the corpus delicti, we find

      this to be sufficient to preserve the issue for appeal even absent a

      contemporaneous objection. See Pawloski v. State, 269 Ind. 350, 359, 380

      N.E.2d 1230, 1235 (1978) (reasoning that because order of proof is within trial

      court’s discretion, trial court did not err in allowing State to reopen case-in-chief

      to establish corpus delicti by independent evidence beyond defendant’s

      confession).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015   Page 5 of 9
[10]   Turning now to Kyle’s argument, she asserts that the State failed to present

       sufficient evidence independent of her confession to establish the corpus delicti

       for Count I. 1 We disagree. First, the independent evidence required to

       establish the corpus delicti need not be direct but rather may be circumstantial.

       Id. Moreover, “[t]he independent evidence need not be shown beyond a

       reasonable doubt nor demonstrate prima facie proof as to each element of the

       charged offense, but must support an inference that the crime was committed.”

       Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990) (emphasis added). In other

       words, for the defendant’s confession to be admissible, there must be “some

       evidence of probative value aside from the confession that tends to prove the

       commission of the crime.” Id. (internal quotation marks omitted).


[11]   For an OWI case, the corpus delicti requires proof that (1) a motor vehicle was

       operated on a public highway and (2) the operator of the vehicle was

       intoxicated at the time. Hunt, 216 Ind. at 178, 23 N.E.2d at 684. 2 Kyle appears

       to contend that, in order to satisfy the element of intoxication for purposes of

       establishing the corpus delicti, the State was required to prove not only that she

       was intoxicated but also that Michael and Jackie were intoxicated, thus creating

       a failsafe scenario in which, regardless of which one of the three actually




       1
         Kyle was charged with OWI with endangerment. See Ind. Code § 9-30-5-2 (“a person who operates a
       vehicle while intoxicated commits … a Class A misdemeanor if the person operates a vehicle in a manner
       that endangers a person.”).
       2
         For the offense of OWI with endangerment, the corpus delicti would seemingly require a showing that
       endangerment occurred. Kyle does not dispute that the vehicle was crashed on an interstate highway, a
       circumstance that involved endangerment to its occupants.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015          Page 6 of 9
       operated the vehicle, the operator would have been intoxicated. 3 We believe

       that she misconstrues the standard for establishing the sufficiency of evidence to

       support the admission of her confession, which is not proof beyond a reasonable

       doubt, but merely independent evidence sufficient to support an inference that a

       crime occurred. 4


[12]   The independent evidence shows the following: the vehicle crashed into an

       interstate highway barrier wall, and no one could exit the driver’s side doors.

       When Trooper Mason arrived, he observed Kyle moving from the driver’s seat

       toward the passenger’s seat, a maneuver that would have been unnecessary had

       she not been in the driver’s seat. The officer saw Jackie exit from the back

       passenger’s side door, and Michael was already out of the vehicle and was

       leaning in to assist Kyle as she moved across the front seats toward the open

       front door on the passenger’s side. This evidence is sufficient to support an

       inference that Kyle was the operator of the vehicle. Her intoxication was

       established by her blood test result and corroborated by Trooper Mason’s

       observations at the scene. This independent evidence is sufficient to establish

       the corpus delicti. In fact, the independent evidence shows not only that a

       crime was committed, but also that Kyle was the one who committed it.




       3
         Regarding whether Jackie and Michael were intoxicated, Trooper Mason testified that “they did appear to
       have consumed alcohol of some sort” and explained that he did no further investigation with respect to the
       level of their intoxication once Kyle admitted to be being the driver. Tr. at 24-26.
       4
         Obviously, once the confession is admitted and independent evidence supports an inference that a crime
       was committed, the State must prove each element of the offense beyond a reasonable doubt in order to
       support the conviction itself. Kyle does not challenge the sufficiency of evidence to support her conviction.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015               Page 7 of 9
       Consequently, the trial court did not abuse its discretion in admitting Trooper

       Mason’s testimony that Kyle confessed to being the driver of the crashed

       vehicle. As such, we affirm her conviction on Count I.


        Section 2 – Due to double jeopardy concerns, the trial
       court must vacate the judgment of conviction on Count
                II and clarify the record accordingly.
[13]   Kyle maintains that the trial court erred in failing to vacate Count II due to

       double jeopardy concerns. “A double jeopardy violation occurs when

       judgments of conviction are entered for the same criminal act and cannot be

       remedied by the ‘practical effect’ of concurrent sentences or by merger after

       conviction has been entered.” West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App.

       2014), trans. denied (2015). “A trial court’s act of merging, without also vacating

       the conviction, is not sufficient to cure a double jeopardy violation.” Id.


[14]   At the close of Kyle’s trial, the trial court initially stated that it would enter a

       judgment of conviction on both counts. The State requested that the

       convictions be merged and sentence entered on only one count, and the trial

       court indicated that it would merge Count II into Count I. With respect to

       Count II, the abstract of judgment simply states “conviction merged.”

       Appellant’s App. at 9. The abstract does not indicate whether the trial court

       actually entered judgment on Count II. As such, we remand with instructions

       to vacate the judgment of conviction on Count II or specify that such judgment

       was not entered, thereby clarifying the written record.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015   Page 8 of 9
[15]   Affirmed and remanded.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-39| September 9, 2015   Page 9 of 9
