
Attorneys for Appellant                            Attorneys for Appellee
Frederick Vaiana                                   Steve Carter
Indianapolis, Indiana                              Attorney General of
Indiana

                                             Andrew A. Kobe
                                             Deputy Attorney General
                                             Indianapolis, Indiana

________________________________________________________________________

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 29S05-0401-CR-27

Robert Henke,
                                             Appellant (Defendant below),

                                     v.

State of Indiana,
                                             Appellee (Plaintiff below).
                      _________________________________

       Appeal from the Hamilton Superior Court, No. 29D04-0012-CM-7823
                  The Honorable J. Richard Campbell, Judge
                      _________________________________

 On Petition To Transfer from the Indiana Court of Appeals, No. 29A05-0211-
                                   CR-554
                      _________________________________


                              January 15, 2004



Boehm, Justice.


      Robert Henke was charged in Hamilton Superior Court with  operating  a
vehicle while intoxicated, a Class A misdemeanor; operating a  vehicle  with
a blood alcohol  content  of  .15  or  more,  a  Class  A  misdemeanor;  and
operating a vehicle with a blood alcohol content of .08 or more, a  Class  C
misdemeanor.  All charges were based on Henke’s  driving  in  the  eastbound
lanes of 96th Street where that street forms  the  boundary  between  Marion
and Hamilton Counties.  The parties agree for the purposes  of  this  appeal
that the eastbound lanes are in Marion County and that Henke drove  only  in
Marion County.


      Indiana Code section 35-32-2-1(i) (2000) provides for venue in  either
county when an offense is committed on a highway sharing the common  border.
 Henke moved to dismiss on the ground that the statute was  unconstitutional
as applied to him.  Henke argued that when the evidence is  clear  that  the
defendant  never  crossed  the  border  into  another  county,  the  Indiana
Constitution limits venue to the county where driving occurred.   The  trial
court denied the motion, holding that the venue statute conferred  venue  on
Hamilton County.  On interlocutory appeal, the Court  of  Appeals  reversed,
relying upon its opinion in Baugh v. State, 781 N.E.2d 1141 (Ind.  Ct.  App.
2002), which involved virtually identical facts.  In  Baugh,  the  Court  of
Appeals agreed that the portion of the  venue  statute  granting  concurrent
jurisdiction could not constitutionally confer venue over crimes  where  the
evidence pointed to only one county as the location of the offense.


      In a companion case today, Baugh v. State, __ N.E.2d __  (Ind.  2004),
we hold that concurrent venue is constitutional for  offenses  committed  by
operating a vehicle on a highway forming the boundary between two  counties.
 We grant transfer, and for the reasons given in  Baugh,  affirm  the  trial
court in this interlocutory appeal and  remand  for  proceedings  consistent
with this opinion.





      SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.





