MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jul 30 2019, 7:50 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
A. David Hutson                                           Curtis T. Hill, Jr.
Hutson Legal                                              Attorney General of Indiana
Jeffersonville, Indiana
                                                          Matthew B. Mackenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stanley Mark Harris,                                      July 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1019
        v.                                                Appeal from the Clark Circuit
                                                          Court
State of Indiana,                                         The Honorable Joseph P. Weber,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          10C03-1705-CM-844



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019               Page 1 of 8
                                        Statement of the Case

[1]   Stanley Harris (“Harris”) was convicted by a jury of Class A misdemeanor

      operating a vehicle while intoxicated (“OVWI”) causing endangerment and

      Class C misdemeanor OVWI.1 On appeal, Harris argues that: (1) the State

      presented insufficient evidence to establish venue; and (2) remand is necessary

      to correct the sentencing order because the trial court erred when it entered a

      judgment of conviction for the lesser-included offense of Class C misdemeanor

      OVWI and indicated that the convictions were pursuant to a plea agreement.

      Concluding that the State presented sufficient evidence to establish venue and

      that remand is necessary, we affirm in part, reverse in part, and remand to the

      trial court with instructions.


[2]   We affirm in part, reverse in part, and remand.


                                                     Issues

                 1. Whether the State presented sufficient evidence to establish venue.

                 2. Whether remand is necessary to correct sentencing order errors.




      1
          IND. CODE § 9-30-5-2.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019   Page 2 of 8
                                                     Facts

[3]   On May 6, 2017, Indiana State Police Trooper Justin Meers (“Trooper Meers”)

      was working traffic control on U.S. 31 in southern Indiana. Trooper Meers

      parked his vehicle at the base of the Second Street Bridge and was facing

      southbound observing traffic leave Kentucky and enter Indiana. Trooper Meers

      observed a Ford Taurus cross the Second Street Bridge and “enter the State of

      Indiana” on a northbound route. (Tr. 102). The vehicle drove “very far left” of

      the double yellow center line to such an extent that “half [of] the vehicle” was

      in the southbound lane. (Tr. 102). The vehicle “jerked and swerved” back into

      its lane, continued northbound on U.S. 31, and again swerved left of the center

      line just shy of a hill crest on that segment of a roadway. (Tr. 102).


[4]   Trooper Meers followed the vehicle northbound on U.S. 31 onto Stansifer

      Avenue. He subsequently activated his emergency lights near a railroad bridge

      on Stansifer Avenue. The driver of the vehicle, Harris, stopped in a parking lot

      near the intersection of Stansifer Avenue and Spring Street. Trooper Meers

      made contact with Harris and “immediately smelled a very, very strong odor of

      alcohol coming from the vehicle.” (Tr. 105).


[5]   Harris informed Trooper Meers that he was coming from a bar in Louisville

      where he had consumed “several” drinks. (Tr. 106). Trooper Meers then asked

      Harris to perform two field sobriety tests, which he failed. Following the tests,

      Harris explained that he suffers from C.O.P.D. and would prefer to take a

      blood test rather than submit to a breathalyzer. Trooper Meers transported

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019   Page 3 of 8
      Harris to Clark Memorial Hospital, where he subsequently refused to take the

      blood test. Harris was then arrested for OVWI and taken to the Clark County

      Jail. When asked on cross-examination why he did not obtain a search warrant

      for Harris’ blood, Trooper Meers explained that through his “training and

      experience[] [of] working [in] Clark County,” he would not be able to obtain a

      search warrant on a run-of-the-mill OVWI. (Tr. 133).


[6]   The State charged Harris with Class A misdemeanor OVWI causing

      endangerment and Class C misdemeanor OVWI. A jury trial was held on

      March 22, 2018, and Trooper Meers was the sole witness. After the State

      rested, Harris motioned for a directed verdict “based upon the fact that there

      was no proof that [the offenses] occurred in Clark County, Indiana.” (Tr. 135).

      After an off-the-record discussion in chambers, the trial court denied the

      motion. Thereafter, the jury found Harris guilty of both counts. Following the

      jury verdict, the trial court noted that the Class C misdemeanor was “a lesser

      included” offense of the Class A misdemeanor. (Tr. 173).


[7]   On April 5, 2018, the trial court held a sentencing hearing. At the hearing, the

      trial court stated:

              We’re here for a sentencing today. This was a result of a jury
              trial that was held previously, and the jury found Mr. Harris
              guilty of Count I, Operating a Vehicle While Intoxicated,
              Endangering a Person, which is a[n] A Misdemeanor, of course.
              Punishable by a penalty of up to $5000, one year in jail. The
              second count is a lesser included misdemeanor, C Misdemeanor,
              rather, Operating While Intoxicated.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019   Page 4 of 8
       (Tr. 174) (emphasis added). In the “Judgment of Conviction and Sentence”

       order dated the same day, the trial court entered a conviction for both offenses

       and imposed a one-year suspended sentence to probation, except ninety (90)

       days home detention. The trial court also stated:


               The Court finds the Defendant pled guilty freely and voluntarily,
               with full knowledge of rights, and there was a factual basis for
               such plea(s). The Court accepts the Plea(s), finds the defendant
               guilty of (each of) the crime(s) to which the Defendant pled guilty
               and enters Judgement of Conviction for such crime(s).

       (App. Vol. 2 at 29). Harris now appeals.


                                                    Decision

[8]    Harris argues that: (1) the State presented insufficient evidence to establish

       venue; and (2) remand is necessary to correct the sentencing order. We address

       each of his contentions in turn.


       1. Venue


[9]    First, Harris argues that the State failed to present sufficient evidence to prove

       venue. Specifically, Harris argues that there was no testimony proving that the

       offense occurred in Clark County. Conversely, the State maintains that there

       was testimony from which a jury could infer that the offense occurred in Clark

       County. We agree with the State.


[10]   Venue is not an element of the offense. Alkhalidi v. State, 753 N.E.2d 625, 628

       (Ind. 2001). Accordingly, the State is required to prove venue by a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019   Page 5 of 8
       preponderance of the evidence rather than beyond a reasonable doubt. Smith v.

       State, 835 N.E.2d 1072, 1074 (Ind. Ct. App. 2005). In other words, the State

       was required to prove that Harris more likely than not committed OVWI in

       Clark County. See Fry v. State, 990 N.E.2d 429, 448 (Ind. 2013) (explaining

       preponderance standard). Venue may be established by circumstantial

       evidence. Bryant v. State, 41 N.E.3d 1031, 1037 (Ind. Ct. App. 2015). Further,

       “the State meets its burden of establishing venue if the facts and circumstances

       permit the trier of fact to infer that the crime occurred in the given county.”

       Eckstein v. State, 839 N.E.2d 232, 233 (Ind. Ct. App. 2005).


[11]   The basis of Harris’ argument is that there was insufficient evidence to establish

       venue in Clark County. Our review of the record, however, reveals testimony

       from which the jury could have inferred that the instant offense did, in fact,

       occur in Clark County. At trial, Trooper Meers testified that he was on patrol

       on U.S. 31 “right at the base of the Second Street Bridge.” (Tr. 98). Trooper

       Meers then observed Harris’ vehicle enter the State of Indiana, and he followed

       it northbound on U.S. 31 onto Stansifer Avenue. After Trooper Meers

       activated his emergency lights, Harris stopped in a parking lot near the

       intersection of Stansifer Avenue and Spring Street. After two failed field

       sobriety tests and a refusal to submit to a blood test while at Clark Memorial

       Hospital, Harris was transported to the Clark County Jail. Further, when asked

       on cross why he did not obtain a search warrant for Harris’ blood, Trooper

       Meers explained that through his “training and experience[] [of] working [in]

       Clark County,” he would not be able to obtain a search warrant on a run-of-the-


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019   Page 6 of 8
       mill OVWI. (Tr. 133). We conclude that the circumstantial evidence was

       sufficient to allow the trier of fact (jurors from Clark County) to infer that the

       crimes more likely than not occurred in Clark County.


       2. Lesser-Included Offense


[12]   Next, Harris argues that remand is necessary to correct the sentencing order

       because the trial court erred when it entered a judgment of conviction for the

       lesser-included offense of Class C misdemeanor OVWI and indicated that the

       convictions were pursuant to a plea agreement. The State agrees that remand is

       necessary.


[13]   INDIANA CODE § 35-38-1-6 provides that if “a defendant is charged with an

       offense and an included offense in separate counts[ ] and the defendant is found

       guilty of both counts[,] judgment and sentence may not be entered against the

       defendant for the included offense.” An offense is a lesser included “if it differs

       from another ‘only in the respect that a less serious risk of harm to the public

       interest is required to establish its commission.’” Watson v. State, 972 N.E.2d

       378, 384 (Ind. Ct. App. 2012) (quoting Sering v. State, 488 N.E.2d 369, 375 (Ind.

       Ct. App. 1986)).


[14]   Here, a jury found Harris guilty of Class A misdemeanor OVWI causing

       endangerment and Class C misdemeanor OVWI. Following the trial and

       during the sentencing hearing, the trial court acknowledged that the Class C

       misdemeanor offense was a lesser-included offense of the Class A

       misdemeanor. Despite this acknowledgment, the trial court entered a judgment

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019   Page 7 of 8
       of conviction for both offenses and also stated that the convictions were the

       result of a plea agreement. Accordingly, we remand to the trial court with

       instructions to vacate Harris’ Class C misdemeanor conviction and enter a new

       “Judgment of Conviction and Sentence” order. We also instruct the trial court

       to correct the order to reflect that Harris’ conviction was the result of a jury

       trial.


[15]   Affirmed in part, reverse in part, and remanded with instructions.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1019 | July 30, 2019   Page 8 of 8
