                                                                                              FILED
                                                                                        Apr 27 2017, 9:59 am

                                                                                              CLERK
                                                                                          Indiana Supreme Court
                                                                                             Court of Appeals
                                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jane Ann Noblitt                                          Curtis T. Hill, Jr.
      Columbus, Indiana                                         Attorney General of Indiana

                                                                Larry D. Allen
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Larry D. Bass,                                            April 27, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                03A01-1606-CR-1493
              v.                                                Appeal from the Bartholomew
                                                                Superior Court
      State of Indiana,                                         The Honorable Kathleen Tighe
      Appellee-Plaintiff.                                       Coriden, Judge
                                                                Trial Court Cause No.
                                                                03D02-1511-CM-5663



      Najam, Judge.


                                        Statement of the Case
[1]   Larry D. Bass appeals his convictions for operating a vehicle while intoxicated

      (“OWI”), one as a Class A misdemeanor and one as a Class C misdemeanor,

      following a bench trial. Bass raises two issues for our review, which we

      Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]               Page 1 of 13
      consolidate and restate as whether the trial court violated Bass’s double

      jeopardy rights when it entered its judgment of conviction against Bass on both

      OWI counts. We conclude that where, as here, the trial court states that the

      defendant has been found guilty of multiple counts of OWI, enters a

      “judgment” that is not specific as to those counts, and then states that the

      counts “merge for purposes of sentencing,” Indiana’s case law requires this

      court to remand to the trial court with instructions that it specifically vacate the

      lesser offense. Accordingly, we reverse and remand with instructions.


                                  Facts and Procedural History
[2]   On December 10, 2014, Joanna Tucker discovered Bass unconscious inside of

      his running, but stopped, vehicle in the middle of the intersection of Seventh

      Street and Lafayette Avenue in Columbus. Tucker placed Bass’s vehicle in

      park. Columbus Police Department Officer Benjamin Goodin arrived

      thereafter and “immediately saw” that Bass’s eyes “were bloodshot and glassy”;

      that his eyelids “were droopy”; that his “speech was extremely slurred to the

      point that he had difficulty formulating a thought or sentence”; and that he

      “had very poor balance where he couldn’t stand up unassisted.” Tr. at 37-38.


[3]   After medical personnel took Bass to a nearby hospital, Bass consented to a

      blood draw. The result of that blood draw demonstrated that Bass had

      methadone, oxycodone, and zolpidem in his blood at the time of the traffic

      incident. The State then charged Bass with two counts of OWI, one as a Class




      Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]   Page 2 of 13
      A misdemeanor (for the alleged endangerment of others1) and one as a Class C

      misdemeanor (for operating with a schedule I or II controlled substance in the

      body2). At his ensuing bench trial, Bass testified that he had an affirmative

      defense to at least the Class C misdemeanor allegation, 3 namely, that he had

      prescriptions for each of the controlled substances found in his blood and that

      he was “taking them” in the manner that his “doctor [had] told [him] to take

      them.” Id. at 50.


[4]   The trial court rejected Bass’s alleged defense, stating:


                 it is a defense . . . that the accused person consumed the
                 controlled substance under a valid prescription . . . . But it is not
                 a defense if you are not able to, if taking that medication puts you
                 in a position where you can cause harm to others. So as to the A
                 misdemeanor I will find that you are guilty . . . . You know
                 passing out in the middle of an intersection is a danger. There’s
                 no doubt about that and[,] although I’ve not seen you[r]
                 prescriptions, even if I take you at your word, and I will that you
                 have been prescribed those medications . . . , it’s abundantly clear
                 to me that you couldn’t have been taking them in the manner in
                 which they were prescribed on that particular occasion. . . .
                 [Y]ou were under the influence of those drugs in such a manner
                 that you ought not to have been behind the wheel of a car. So I
                 am going to find that you are guilty both of the A and C
                 misdemeanor[s].


      Id. at 57-59.


      1
          See Ind. Code § 9-30-5-2 (2016).
      2
          I.C. § 9-30-5-1(c).
      3
          I.C. § 9-30-5-1(d).

      Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]    Page 3 of 13
[5]   Thereafter, the trial court held a sentencing hearing. Following that hearing,

      the court entered its written order against Bass. In that order, which is simply

      titled “Judgment,” the court acknowledged that Bass had been found guilty on

      both counts but then stated that “the counts merge for the purpose of

      sentencing.” Appellant’s App. Vol. 2 at 17. The court then ordered Bass to

      serve one year, all but ten days of which it suspended to probation. The court

      did not specifically delineate on which counts it had entered its judgment of

      conviction. This appeal ensued.


                                      Discussion and Decision
[6]   On appeal, Bass contends that the trial court violated his double jeopardy rights

      when it entered judgment against him for both Class A misdemeanor OWI and

      Class C misdemeanor OWI. “Entry of conviction for both an offense and its

      lesser-included offenses ‘is impermissible under both state and federal double

      jeopardy rules.’” Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015)

      (quoting Wentz v. State, 766 N.E.2d 351, 359-60 (Ind. 2002)), trans. denied. And

      it is well-established that both “[t]he offense of operating a vehicle with a

      controlled substance [as a Class C misdemeanor] . . . and the offense of

      operating a vehicle while intoxicated [as a Class A misdemeanor] cannot stand”

      under double jeopardy principles when “the presence of the [same controlled

      substance] was a fact used by the State to prove” both the Class A and the Class

      C misdemeanors. Kremer v. State, 643 N.E.2d 357, 361 (Ind. Ct. App. 1994),

      superseded by statute on other grounds, see Vanderlinden v. State, 918 N.E.2d 642,

      645 (Ind. Ct. App. 2009), trans. denied; see also Hornback v. State, 693 N.E.2d 81,

      Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]   Page 4 of 13
      85 (Ind. Ct. App. 1998) (reversing a Class C misdemeanor OWI conviction as a

      lesser included offense to a Class A misdemeanor OWI conviction).


[7]   Further, as we have explained:


              If a trial court does not formally enter a judgment of conviction
              on a [finding] of guilty, then there is no requirement that the trial
              court vacate the “conviction,” and merger is appropriate.
              Townsend v. State, 860 N.E.2d 1268, 1270 (Ind. Ct. App. 2007)
              (quoting Green v. State, 856 N.E.2d 703, 704 (Ind. 2006)).
              However, if the trial court does enter judgment of conviction on a [guilty
              finding], then simply merging the offenses is insufficient and vacation of
              the offense is required. See id.; Green, 856 N.E.2d at 704; Gregory v.
              State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (where trial court
              entered judgments of conviction on jury’s verdicts of guilty for
              dealing and conspiracy, then later merged the convictions for
              double jeopardy reasons, such merging without also vacating the
              conspiracy conviction was insufficient to cure the double
              jeopardy violation).


      Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (emphasis added).


[8]   Applying Kovats in a subsequent appeal, we held:


              Here, in a document captioned “Judgment,” the trial court noted
              that [the defendant] was guilty on both counts before determining
              that Count II merged into Count I. Under these circumstances,
              we conclude the court entered judgment on the convictions, and
              merger was insufficient to remedy the double jeopardy violation.
              See Kovats[,] 982 N.E.2d [at 415] (determining that the trial court
              entered judgment on multiple convictions and that merger
              without vacatur was inadequate). We thus remand this case with
              instructions to vacate the conviction of Count II, operating with a
              blood alcohol content of .15 or more.


      Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]      Page 5 of 13
       West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied.


[9]    The same is true here. In a document captioned “Judgment,” the trial court

       acknowledged that Bass had been found guilty of both the Class A

       misdemeanor and the Class C misdemeanor before then declaring that the two

       counts merged for purposes of sentencing. Appellant’s App. Vol. 2 at 17. This

       was not a sufficient remedy to the apparent double jeopardy concern. West, 22

       N.E.3d at 875. Indeed, the State concedes this issue on appeal. Accordingly,

       we reverse and remand with instructions to vacate Bass’s conviction for the

       Class C misdemeanor OWI.


[10]   We briefly note that Bass also argues on appeal that the State failed to present

       sufficient evidence to support his conviction for Class C misdemeanor OWI. In

       particular, Bass asserts that his testimony demonstrated an affirmative defense

       under Indiana Code Section 9-30-5-1(d), regarding consumption of a controlled

       substance under a valid prescription. But, as explained above, we hold that

       Bass’s conviction for Class C misdemeanor OWI is to be vacated; as such, his

       challenge to the sufficiency of the evidence underlying a guilty finding on a

       Class C misdemeanor on which there has been no proper judgment of

       conviction is, at best, not yet ripe for review. See Carter v. State, 750 N.E.2d 778,

       781 (Ind. 2001) (concluding that “[t]here is no particular reason to order a trial

       court to vacate” a guilty finding on which there is no judgment of conviction).

       And Bass does not assert that his affirmative defense argument is equally

       applicable to his Class A misdemeanor conviction, which required the State to

       show that Bass had operated his vehicle in a manner that endangered a person.

       Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]   Page 6 of 13
       See I.C. § 9-30-5-2(b). Indeed, Bass limits his affirmative-defense argument to

       his purported Class C misdemeanor conviction, and the State expressly relies

       on that limitation in responding to Bass’s arguments on appeal. Thus, because

       Bass did not argue on appeal that such an affirmative defense was applicable to

       the Class A misdemeanor OWI charge, we do not consider it. See Ind.

       Appellate Rule 46(A)(8)(a).


[11]   In sum, we reverse Bass’s conviction for Class C misdemeanor OWI and

       remand with instructions for the trial court to vacate that conviction.


[12]   Reversed and remanded with instructions.


       Bailey, J., concurs.

       May, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]   Page 7 of 13
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Larry D. Bass,
       Appellant-Defendant,

               v.                                                Court of Appeals Case No.
                                                                 03A01-1606-CR-1493
       State of Indiana,
       Appellee-Plaintiff.




       May, Judge, dissenting.


[13]   I would address Bass’s statutory construction argument on the merits and

       vacate his guilty finding of Class C misdemeanor OWI, rendering moot the

       double jeopardy issue on which the majority relies. Accordingly, I dissent.


[14]   The Class C misdemeanor OWI for which Bass was found guilty required only

       that he “operate[d] a vehicle with a controlled substance listed in schedule I or

       II of IC 35-48-2 or its metabolite” in his body. Ind. Code § 9-30-5-1(c). The

       legislature also created a statutory defense to this version of OWI: “It is a

       defense to subsection (c) that the accused person consumed the controlled

       substance under a valid prescription or order of a practitioner (as defined in IC

       35-48-1) who acted in the course of the practitioner’s professional practice.”

       Ind. Code § 9-30-5-1(d).

       Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]            Page 8 of 13
[15]   At the conclusion of Bass’s bench trial, the trial court stated:


               All right Mr. Bass the statute says . . . a person who operates a
               vehicle with a controlled substance listed in schedule I or II or it’s
               [sic] metabolite in the person’s body commits a [C]lass C
               misdemeanor and it goes on further to say it is a defense to
               subsection C that the accused person consumed the controlled
               substance under a valid prescription or order of a practitioner
               who acted in the course of the practitioner’s professional practice.
               But it is not a defense if you are not able to, if taking that
               medication puts you in a position where you can cause harm to
               others. So as to the A misdemeanor I will find that you are guilty
               of operating under the influence, that you were intoxicated and it
               was in a manner in which a person was endangered. You know
               passing out in the middle of an intersection is a danger. There’s
               no doubt about that and although I’ve not seen your prescriptions,
               even if I take you at your word, and I will that you have been prescribed
               those medications the condition that you were in is a condition that
               even though you may have prescriptions for those medications,
               it’s abundantly clear to me that you couldn’t have been taking
               them in the manner in which they were prescribed on that
               particular occasion. If you had been on those drugs for three
               months up to that point and had not had any issues, based upon
               the officer’s testimony, the witness’s testimony who stopped to
               assist you, you were under the influence of those drugs in such a
               manner that you ought not to have been behind the wheel of a
               car. So I am going to find that you are guilty both of the A and C
               misdemeanor.


       (Tr. at 57-58) (emphasis added).


[16]   Bass argues he cannot be guilty of the Class C misdemeanor because the trial

       court found Bass had “been prescribed those medications[,]” (id. at 58), which

       Bass claims is the equivalent of finding the medications were “consumed . . .


       Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]     Page 9 of 13
       under a valid prescription” as is required for the statutory defense. Ind. Code §

       9-30-5-1(d). However, the remainder of the trial court’s statement – “you

       couldn’t have been taking them in the manner in which they were prescribed on

       that particular occasion,” (id. at 58) – indicates the trial court believed the

       statutory phrase “consumed . . . under a valid prescription” meant Bass could

       not rely on the statutory defense unless Bass proved he had taken the

       medications in accordance with the instructions provided on the valid

       prescriptions.


[17]   Bass’s argument raises a question of statutory construction,4 “which is a matter

       of law and is reviewed de novo.” Suggs v. State, 51 N.E.3d 1190, 1193 (Ind.

       2016).

                When construing a statute, our primary goal is to ascertain the
                legislature’s intent. To discern that intent, we look first to the
                statutory language itself and give effect to the plain and ordinary
                meaning of the statutory terms. If a statute is unambiguous, that
                is, susceptible to but one meaning, we must give the statute its
                clear and plain meaning. However, if a statute admits of more
                than one interpretation, then it is ambiguous; and we thus resort
                to rules of statutory interpretation so as to give effect to the
                legislature’s intent. For example, we read the statute as a whole,
                avoiding excessive reliance on a strict literal meaning or the



       4
         The State did not respond to Bass’s statutory construction argument. In such a circumstance, an appellate
       court looks only to see whether the trial court committed prima facie error, which is error at first glance. See
       Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct. App. 2002) (failure to respond to an issue is akin to failing to file
       a brief; for claimant to succeed, he need only establish prima facie error). An appellate court may not
       construct arguments on the appellee’s behalf. See Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004)
       (if the appellate court constructs argument, it abdicates its role as “impartial tribunal”).



       Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]                           Page 10 of 13
               selective reading of individual words. And we seek to give a
               practical application of the statute by construing it in a way that
               favors public convenience and avoids an absurdity, hardship, or
               injustice. Further, criminal statutes must be strictly construed
               against the State, and may not be enlarged beyond the fair
               meaning of the language used . . . .”


       Id. at 1193-94 (internal citations and quotations omitted).


[18]   At issue is the meaning of the phrase “consumed . . . under a valid prescription”

       as found in Indiana Code Section 9-30-5-1(d). The trial court interpreted that

       phrase to mean “consumed in accordance with a valid prescription,” and Bass

       argues the phrase means “had a valid prescription for the medications

       consumed.” Because the meaning of that phrase is ambiguous, it should be

       construed in a way that gives effect to the legislature’s intent while also

       avoiding “absurdity, hardship, or injustice.” Suggs, 51 N.E.3d at 1194.


[19]   Chapter 5 of Indiana Code Article 9-30 is denominated “Operating a Vehicle

       While Intoxicated.” Section 1 of that Chapter defines three crimes, and the first

       two of those are versions of OWI based on the amount of alcohol found in a

       driver’s breath or blood. See Ind. Code § 9-30-5-1(a) (defining alcohol

       concentration equivalent of .08 to .15 as a Class C misdemeanor) and Ind.

       Code § 9-30-5-1(b) (defining alcohol concentration equivalent at or above .15 as

       a Class A misdemeanor). The alcohol concentration equivalents used to define

       those crimes were established, and later modified, based on research conducted

       to determine the impact of alcohol – a substance that is legal to possess and

       consume – on a person’s ability to drive.

       Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]   Page 11 of 13
[20]   The third crime defined in Section 1, in contrast, criminalizes driving as

       “intoxicated” if a person has any amount of a schedule I or II controlled

       substance, or its metabolite, in his or her body. See Ind. Code § 9-30-5-1(c).

       The State is not required to prove, for purposes of a conviction under that

       definition, that a driver was intoxicated or that the amount of metabolite in the

       person’s blood might or did have had any impact whatsoever on the person’s

       ability to drive. Thus, the legislature defined the crime so broadly that it

       criminalizes legal behavior – driving in a manner that does not endanger

       anyone after consumption of medication for which one has a valid prescription.

       Because we are to construe criminal statutes against the State, see Suggs, 51

       N.E.3d at 1194, I would interpret the defense provided in subsection (d)

       broadly, as a straightforward attempt by the legislature to protect citizens who

       legally possess prescription medications from the embarrassment of facing

       criminal proceedings for consuming those prescriptions. Thus, I agree with

       Bass that, for purposes of Indiana Code Section 9-30-5-1(d), “consumed . . .

       under a valid prescription” means simply “had a valid prescription.”


[21]   After all, if a person drives while intoxicated on a schedule I or II controlled

       substance – regardless whether that driver had a valid prescription or obtained

       the drug illegally – the State’s remedy is to convict that person of driving while

       intoxicated under Indiana Code Section 9-30-5-2, rather than under Indiana

       Code Section 9-30-5-1. And, that is precisely what the State was able to do in

       this case, as it obtained a Class A misdemeanor conviction of Bass for driving




       Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]   Page 12 of 13
       while intoxicated in a manner that endangered a person. See Ind. Code § 9-30-

       5-2(b).


[22]   Thus, I would hold the trial court erred when it both accepted that Bass had

       valid prescriptions for the drugs found in his body and found Bass guilty of

       operating a vehicle with those substances in his body under Indiana Code

       Section 5-30-5-1(c). As such, I would reverse the court’s guilty finding as to the

       Class C misdemeanor and remand for the court to correct its record to indicate

       Bass was acquitted of that charge. Accordingly, I dissent.5




       5
         I acknowledge the majority’s vacation of Bass’s Class C misdemeanor conviction on double jeopardy
       grounds renders moot at present the statutory construction argument on which I write. However, the
       majority’s resolution of Bass’s appeal leaves the finding of guilt as to that Class C misdemeanor on the
       judicial record, such that if Bass’s Class A misdemeanor conviction were overturned at some later date, the
       trial court could again enter a judgment of conviction on that Class C misdemeanor. See Carter v. State, 750
       N.E.2d 778, 781 n.9 (Ind. 2001) (noting court should not vacate verdicts underlying lesser-included offenses
       not reduced to judgment so that those findings remain on the record if conviction of greater offense is ever
       overturned). Because I believe Bass’s Class C misdemeanor conviction is impermissible as a matter of law, I
       cannot concur with the majority’s decision to side-step Bass’s statutory-construction argument.



       Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017]                     Page 13 of 13
