MEMORANDUM DECISION
                                                               Jun 30 2015, 8:02 am
Pursuant to Ind. Appellate Rule 65(D), 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
Barbara J. Simmons                                        Gregory F. Zoeller
Oldenburg, Indiana                                        Attorney General of Indiana

                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tierra Greene,                                           June 30, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A05-1411-CR-542
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge;
Appellee-Plaintiff.                                      The Honorable David M. Hooper,
                                                         Magistrate

                                                         Cause No. 49G08-1406-CM-32640




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-542 | June 30, 2015     Page 1 of 7
                                          Statement of the Case
[1]   Tierra Green appeals her conviction for operating a vehicle while intoxicated,

      as a Class A misdemeanor, following a bench trial. Greene raises two issues for

      our review:

               1.       Whether the State presented sufficient evidence to support
                        her conviction.


               2.       Whether the trial court violated her double jeopardy rights
                        when it merged a lesser-included offense with the Class A
                        misdemeanor.


[2]   We affirm.


                                    Facts and Procedural History
[3]   At approximately 10:45 p.m. on June 21, 2014, Indianapolis Metropolitan

      Police Department (“IMPD”) Officer Brad Alford, while patrolling in the 6100

      block of Keystone Avenue near Glendale Mall, observed a red vehicle driven by

      Greene traveling southbound without headlights on. While that vehicle was

      stopped at a stoplight, Officer Alford flashed his lights at Greene, shone his

      spotlight at her, and, through his loud speaker, told her to turn the headlights

      on. Despite Officer Alford’s attempts to get Greene’s attention, she proceeded

      through the stoplight when the light changed.1




      1
        In her brief, Green erroneously asserts that she did not proceed through the stoplight. Appellant’s Br. at 8.
      But see Tr. at 8.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-542 | June 30, 2015                 Page 2 of 7
[4]   Accordingly, Officer Alford initiated a traffic stop. Upon hearing the reason for

      the stop, Greene informed Officer Alford that she was driving a rental car, and

      that she had had “trouble with the headlights” working. Tr. at 17. Officer

      Alford observed that Greene had red, watery eyes; slurred speech; and the smell

      of alcohol on her breath. Officer Alford had Greene exit the vehicle and

      performed a field sobriety test, which Greene failed. Officer Alford then called

      for assistance from another IMPD Officer, Daniel Shragal, who arrived about

      ten minutes later. Officer Shragal also observed Greene’s signs of intoxication,

      and Greene failed a field sobriety test that he administered. Officer Shragal

      then transported Greene to a chemical testing location, at which her blood

      alcohol content was measured at 0.100.


[5]   The next day, the State charged Greene with two counts of operating a vehicle

      while intoxicated, one as a Class A misdemeanor and one as a Class C

      misdemeanor. At her ensuing bench trial, Greene asserted that she had

      “always [driven] cars with automatic lights” and so she “assumed that they

      would already be on” in the rental car. Id. at 73. She also asserted that she was

      driving in a “well-lit area.” Id. at 74. The court found Greene guilty on both

      counts.2 The court then “[m]erged” the Class C misdemeanor offense with the




      2
        The State’s charging information plainly alleged a Class C misdemeanor as the second offense. Appellant’s
      App. at 12. And the trial court’s sentencing order and the CCS both refer to the second offense as a Class C
      misdemeanor. Id. at 7, 9. Yet, both Greene and the State, in their appellate briefs, erroneously refer to the
      second offense as a Class B misdemeanor. Appellant’s Br. at 2, 5-6, 9; Appellee’s Br. at 1, 4.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-542 | June 30, 2015               Page 3 of 7
      Class A misdemeanor offense and sentenced Greene to one year, all of which it

      suspended. Appellant’s App. at 9. This appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[6]   Greene first asserts that the State failed to present sufficient evidence to support

      her conviction for operating a vehicle while intoxicated, as a Class A

      misdemeanor. When reviewing a claim of sufficiency of the evidence, we do

      not reweigh the evidence or judge the credibility of the witnesses. Jones v. State,

      783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence

      supporting the judgment and the reasonable inferences that may be drawn from

      that evidence to determine whether a reasonable trier of fact could conclude the

      defendant was guilty beyond a reasonable doubt. Id. If there is substantial

      evidence of probative value to support the conviction, it will not be set aside.

      Id.


[7]   In order to show that Greene operated a vehicle while intoxicated, as a Class A

      misdemeanor, the State was required to show beyond a reasonable doubt that

      Greene, while intoxicated, operated a vehicle in a manner that endangered a

      person. Ind. Code § 9-30-5-2. Greene does not dispute that she operated a

      vehicle while intoxicated. Rather, she challenges only whether the State’s

      evidence demonstrated that she did so in a manner that endangered a person.


[8]   As we have explained:



      Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-542 | June 30, 2015   Page 4 of 7
              The element of endangerment can be established by evidence
              showing that the defendant’s condition or operating manner
              could have endangered any person, including the public, the
              police, or the defendant. Endangerment does not require that a
              person other than the defendant be in the path of the defendant’s
              vehicle or in the same area to obtain a conviction.

                                                      ***

               . . . [P]roof of ‘endangerment’ [must go] beyond mere
              intoxication in order for the defendant to be convicted of
              operating while intoxicated, as a Class A misdemeanor.


      Outlaw v. State, 918 N.E.2d 379, 381-82 (Ind. Ct. App. 2009) (citations omitted),

      adopted, 928 N.E.2d 196 (Ind. 2010).


[9]   The State met its burden here. The State’s evidence demonstrated that Greene

      operated a vehicle at 10:45 p.m. without having the headlights on. Moreover,

      she did so in a busy area near a mall. It was easily within the fact-finder’s

      prerogative to find that this evidence demonstrated that Greene endangered

      herself or another. Thus, contrary to Greene’s argument on appeal, the State

      did not merely rely on the fact of her intoxication to demonstrate

      endangerment. Further, insofar as Greene asserts that she was driving in a

      well-lit area, or that she was ignorant about how the car worked, Greene’s

      arguments are simply a request for this court to reweigh the evidence, which we

      will not do. We affirm her conviction for operating a vehicle while intoxicated,

      as a Class A misdemeanor.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-542 | June 30, 2015   Page 5 of 7
                                              Issue Two: Merger

[10]   Greene next asserts that the trial court violated her double jeopardy rights when

       it merged her Class C misdemeanor offense with her Class A misdemeanor

       offense. We cannot agree.


[11]   The law here is clear:


               If a trial court does not formally enter a judgment of conviction
               on a jury verdict 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
               jury’s guilty verdict, 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); see also Green, 856

       N.E.2d at 704 (“a defendant’s constitutional rights are violated when a court

       enters judgment twice for the same offense, but not when a defendant is simply

       found guilty of a particular count . . . on which there is neither a judgment nor a

       sentence . . . .”).


[12]   Here, at the conclusion of her bench trial the court found Greene guilty of both

       counts. Tr. at 91. The parties then agreed to move immediately into


       Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-542 | June 30, 2015   Page 6 of 7
       sentencing, and, at the conclusion of the parties’ arguments, the court stated:

       “All right moving forward to sentencing merge Counts One and Two under one

       A misdemeanor conviction.” Id. at 97. The court then issued its Sentencing

       Order, which states the disposition of the Class C misdemeanor offense as

       “Conviction Merged.” Appellant’s App. at 9. The CCS says the same. Id. at 7.

       In contrast, in both the CCS and the Sentencing Order, the disposition of the

       Class A misdemeanor offense is “Finding of Guilty.” Id. at 7, 9.


[13]   While the trial court’s documents could be more clear, nonetheless we conclude

       that, although the court found Greene guilty of the Class C misdemeanor

       offense, it did not enter a formal judgment of conviction or sentence against

       Greene on that offense. Thus, we hold that there is no double jeopardy

       violation with respect to the court’s merger of the Class C misdemeanor offense

       with the Class A misdemeanor conviction. We affirm the court’s judgment.


[14]   Affirmed.


       Baker, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-542 | June 30, 2015   Page 7 of 7
