MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Apr 27 2016, 8:34 am
this Memorandum Decision shall not be
                                                                         CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

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
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Hubert Wheat,                                            April 27, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1508-CR-1195
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G19-1410-CM-48618



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1195 | April 27, 2016        Page 1 of 7
                                Case Summary and Issue
[1]   Following a bench trial, the trial court found Hubert Wheat guilty of operating

      a vehicle while intoxicated with an alcohol concentration equivalent (“ACE”)

      of 0.15 or more, and operating a vehicle while intoxicated in a manner that

      endangers a person, both Class A misdemeanors. Wheat raises one issue on

      appeal: whether there is sufficient evidence of endangerment to support his

      conviction for operating a vehicle while intoxicated in a manner that endangers

      a person. Concluding the evidence is sufficient, we affirm his conviction. We

      remand, however, with instructions for the trial court to vacate Wheat’s

      conviction of operating a vehicle with an ACE of 0.15 or more.



                            Facts and Procedural History
[2]   Shortly after midnight on October 21, 2014, Indianapolis Metropolitan Police

      Department Officer Darryl Jones was traveling westbound on 38th Street when

      a van without a working license plate light pulled out in front of him. The van

      then made three illegal lane changes before making an illegal U-turn at the

      intersection of 38th and Boulevard Place. Officer Jones conceded there was

      “minimal traffic” at the time, transcript at 34; however, he also stated the

      intersection at 38th and Boulevard is among the most dangerous intersections

      in the city due to speed and sightlines: “there’s a lot of accidents at that

      location,” id. at 13. Officer Jones followed the vehicle until it pulled into the

      parking lot of a gas station at 38th and Capitol Avenue. Officer Jones activated



      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1195 | April 27, 2016   Page 2 of 7
      his emergency lights and initiated a stop due to the multiple traffic infractions

      committed.


[3]   Officer Jones approached the vehicle and observed two occupants in the

      vehicle. Officer Jones noted that the driver, identified as Wheat, smelled of

      alcohol and had poor manual dexterity, slurred speech, and bloodshot, watery

      eyes. Officer Jones had Wheat exit the vehicle and observed that Wheat was

      unsteady and staggering. Officer Jones administered the horizontal gaze

      nystagmus test and the one-leg stand test, two out of the three field sobriety tests

      that Officer Jones regularly administers. Wheat failed both. Wheat stated that

      he could not complete the third test—the nine-step walk and turn test—because

      he recently had hip surgery. Officer Jones obtained a warrant for blood testing,

      which showed Wheat’s blood contained 0.16 grams of alcohol per one hundred

      milliliters of blood.


[4]   Officer Jones did not cite Wheat for any of the traffic infractions. Wheat was,

      however, charged with operating a vehicle while intoxicated in a manner that

      endangers a person and operating a vehicle while intoxicated with an ACE of

      0.15 or more, both Class A misdemeanors. The court held a bench trial, after

      which it found Wheat guilty of both counts. The court then stated that for both

      counts, it was imposing a sentence of 365 days with credit for three days served

      and the balance suspended to probation and “[t]hey will run concurrently to

      one another.” Tr. at 125-26. This appeal followed.



                                 Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1195 | April 27, 2016   Page 3 of 7
                               I. Sufficiency of the Evidence
                                      A. Standard of Review
[5]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “It is the fact-

      finder’s role, not that of appellate courts, to assess witness credibility and weigh

      the evidence to determine whether it is sufficient to support a conviction.” Id.

      The conviction will be affirmed unless “no reasonable fact-finder could find the

      elements of the crime proven beyond a reasonable doubt.” Id. at 146-47.

      (citation omitted). To convict Wheat of operating a vehicle while intoxicated as

      a Class A misdemeanor, the State had to prove beyond a reasonable doubt that

      Wheat operated his vehicle while intoxicated “in a manner that endangers a

      person.” Ind. Code § 9-30-5-2(b).


                                B. Evidence of Endangerment
[6]   Wheat does not challenge the sufficiency of the evidence showing he was

      intoxicated. Instead, he argues there is insufficient evidence showing his

      operation of the vehicle endangered a person because there was very little traffic

      at the time and his traffic infractions were minor.


[7]   In Outlaw v. State, 918 N.E.2d 379 (Ind. Ct. App. 2009), adopted by 929 N.E.2d

      196 (Ind. 2010), a vehicle driven by Outlaw, accompanied by three passengers,

      was pulled over for not having a properly illuminated license plate, but no other

      traffic infractions were observed. Outlaw was, however, intoxicated. Outlaw

      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1195 | April 27, 2016   Page 4 of 7
      was convicted of operating a vehicle while intoxicated in a manner that

      endangers a person, a Class A misdemeanor. On appeal, Outlaw argued, in

      part, that the State failed to present any evidence on the element of

      endangerment. The State argued Outlaw’s intoxication was sufficient to show

      he operated his vehicle in an unsafe manner, but conceded there was no other

      evidence that Outlaw operated the vehicle in an unsafe manner. We reversed

      Outlaw’s conviction, holding “the State was required to submit proof of

      ‘endangerment’ that went beyond mere intoxication in order for the defendant

      to be convicted of operating while intoxicated, as a Class A misdemeanor.” Id.

      at 382. Because the traffic stop “was based on a non-illuminated license plate

      rather than erratic or unlawful driving, . . . no evidence other than the intoxication

      suggests that Outlaw was operating his motor vehicle in a manner that would

      endanger himself, his three passengers, or any other person.” Id. (emphasis

      added).


[8]   Unlike the facts in Outlaw, Officer Jones observed Wheat making several unsafe

      and unlawful traffic maneuvers, in addition to observing his non-illuminated

      license plate. See Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011)

      (upholding a conviction for operating a vehicle while intoxicated in a manner

      that endangers a person where the defendant crossed the centerline and ran a

      stop sign because the defendant’s intoxication “resulted in unsafe driving

      practices”), trans. denied. Although the officer opted not to cite Wheat for these

      infractions, Officer Jones’ testimony regarding Wheat’s unlawful and unsafe

      driving is sufficient to prove Wheat operated a vehicle in a manner that could


      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1195 | April 27, 2016   Page 5 of 7
       endanger the public, the police, Wheat’s passenger, or Wheat himself. See

       Staley v. State, 895 N.E.2d 1245, 1251 (Ind. Ct. App. 2008) (noting the

       endangerment clause “does not require the State to prove a person other that

       [sic] the defendant was actually in the path of the defendant’s vehicle or in the

       same area”), trans. denied. Accordingly, the State presented sufficient evidence

       to support Wheat’s conviction for operating a vehicle while intoxicated in a

       manner that endangers a person.


                            II. Merger of Wheat’s Convictions
[9]    The trial court found Wheat guilty of both Class A misdemeanors with which

       he was charged and stated at the sentencing hearing it was imposing sentence

       on both counts.1 We further note the sentencing order states there was a

       “finding of guilty” as to operating a vehicle while intoxicated in a manner that

       endangers a person and that, as to operating a vehicle with an ACE of 0.15 or

       more, the “conviction merged.” Appellant’s Appendix at 15. The sentencing

       order further reflects a 365-day sentence was imposed only on the conviction of

       operating a vehicle while intoxicated in a manner that endangers a person. Id.


[10]   Operating a vehicle with an ACE of 0.15 or more is a lesser-included offense of

       operating a vehicle while intoxicated in a manner that endangers a person. See

       Ind. Code § 9-13-2-131 (stating that evidence of an ACE of at least 0.08 is prima




       1
        Wheat’s counsel asked, “Don’t they merge, Judge[?]” Tr. at 126. The trial court replied, “Well, they
       should merge, but I’m not sure how it’s going to get entered. All right, you’ll figure it out.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1195 | April 27, 2016           Page 6 of 7
       facie evidence of intoxication). It appears, from both the trial court’s oral

       statements at the sentencing hearing and the language of the sentencing order,

       that the trial court entered a judgment of conviction on both counts, but

       intended to avoid a double jeopardy violation. The trial court’s act of merging,

       without also vacating, the conviction of a lesser-included offense is insufficient

       to avoid a double jeopardy violation, however. Payton v. State, 818 N.E.2d 493,

       497 (Ind. Ct. App. 2004), trans. denied. “Indeed, a double jeopardy violation

       occurs when judgments of conviction are entered and cannot be remedied by

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

       been entered.” Id. Accordingly, we remand with instructions for the trial court

       to vacate the conviction of operating a vehicle with an ACE of 0.15 or more.



                                               Conclusion
[11]   The State presented sufficient evidence to support Wheat’s conviction for

       operating a vehicle while intoxicated in a manner that endangers a person, a

       Class A misdemeanor. His conviction is affirmed. However, we remand for

       the conviction for operating a vehicle with an ACE of 0.15 or more to be

       vacated.


[12]   Affirmed and remanded with instructions.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1195 | April 27, 2016   Page 7 of 7
