FOR PUBLICATION


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                  GREGORY F. ZOELLER
Marion County Public Defender                  Attorney General of Indiana
Indianapolis, Indiana
                                               RYAN D. JOHANNINGSMEIER
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                                                             FILED
                             IN THE                                      Jul 05 2012, 9:09 am

                   COURT OF APPEALS OF INDIANA                                   CLERK
                                                                               of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




BRENDA STUTZ,                                  )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )      No. 49A02-1110-CR-960
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Barbara A. Collins, Judge
                   The Honorable Deborah J. Shook, Master Commissioner
                            Cause No. 49F08-1102-CM-12062


                                      July 5, 2012

                             OPINION – FOR PUBLICATION

DARDEN, Judge
                                   STATEMENT OF THE CASE

         Brenda Stutz appeals her conviction following a bench trial for operating a vehicle

with a blood-alcohol content (“BAC”) of at least .15 percent, a class A misdemeanor.1

         We affirm and remand with instructions.

                                           ISSUE

                Whether the trial court improperly entered a judgment of conviction
         for operating a vehicle with a blood-alcohol content of at least .15 percent.

                                           FACTS

         During the afternoon of February 21, 2011, Kenneth Blake was sitting in the

waiting room of the Foot and Ankle Institute in Indianapolis when he noticed Stutz.

Stutz caught his attention because “she seemed a little loud in talking to somebody . . . .”

(Tr. 6). At one point, Blake heard Stutz excuse herself to make some phone calls “and

then when she came back and passed by [him],” he smelled the odor of alcohol

emanating from Stutz. (Tr. 6). Although Blake saw the vehicle in which Stutz had

arrived at the doctor’s office, he did not observe her driving. Blake telephoned 911 and

reported Stutz as a possibly impaired driver.

         Shortly thereafter, dispatch relayed a description of Stutz, her vehicle and the

license plate number to Indianapolis Police Officer Lona Douglas.             When Officer

Douglas arrived at the location, she observed Stutz in her vehicle as she “started to back

out,” stop, “pull[] back forward,” stop again and then finally back out of the parking


1
    Ind. Code § 9-30-5-1.

                                                2
space. (Tr. 12). Officer Douglas exited her police vehicle and approached Stutz’s

vehicle “as it was just sitting still outside of the parking spot . . . .” (Tr. 13). Officer

Douglas made eye contact with Stutz and “waved” at her. (Tr. 13). As Officer Douglas

advanced toward the vehicle, Stutz “started to pull forward,” prompting Officer Douglas

to return to her vehicle and activate her emergency lights. (Tr. 13). The two again made

eye contact and as Officer Douglas walked toward Stutz’s vehicle, Stutz “started to drive

off,” at which point Officer Douglas gestured to Stutz to stop her vehicle. (Tr. 13).

       Officer Douglas approached the driver’s side of Stutz’s vehicle; Stutz, however,

had not rolled down her window. Once Officer Douglas indicated that Stutz needed to

roll down her window, Stutz “broke eye contact and began to fumble” with the window

crank before rolling down the window “about an inch or so.” (Tr. 14). Officer Douglas

asked Stutz whether she had been drinking. Although Stutz denied drinking, Officer

Douglas “immediately” smelled the odor of alcohol. (Tr. 14). Officer Douglas also

observed that Stutz’s eyes were “watery and bloodshot.” (Tr. 15). Stutz then opened the

car door and “pulled herself out” of the vehicle. (Tr. 15). After Officer Douglas again

asked whether Stutz had been drinking, Stutz admitted to having had “a couple of drinks”

but did not know exactly how much as “she had taken drinks directly out of the vodka

bottle.” (Tr. 15).

       Given the inclement weather, Officer Douglas transported Stutz to the police

department’s roll call site in order to administer field sobriety tests. Officer Richard

Eldridge, a “DUI enforcement officer,” met Officer Douglas and Stutz at the site. (Tr.

                                             3
35). He immediately “observed the signs of intoxication which w[ere] [the] odor of an

alcoholic beverage emitting from [Stutz’s] person and breath, slurred speech with a thick

tongue, bloodshot eyes” and “unsteady balance.”        (Tr. 37).   Officer Eldridge then

administered several field sobriety tests, which Stutz failed.     Officer Eldridge also

administered a breath test with a B.A.C. Datamaster. The breath test revealed a blood-

alcohol content of .20 percent.

       On February 21, 2011, the State charged Stutz with Count 1, operating a vehicle

while intoxicated in a manner that endangered a person, a class A misdemeanor; Count 2,

operating a vehicle with a BAC of at least .15 percent, a class A misdemeanor; and Count

3, public intoxication, a class B misdemeanor. The trial court held a bench trial on

September 28, 2011. The State conceded that it had not presented any evidence of

endangerment, which was required to elevate Count 1 to a class A misdemeanor from a

class C misdemeanor.

       The trial court found Stutz guilty of, and entered a judgment of conviction for,

Count 1, operating a vehicle while intoxicated as a class C misdemeanor; Count 2,

operating a vehicle with a BAC of at least .15 percent, a Class A misdemeanor, and

Count 3, public intoxication. The trial court then sentenced Stutz to concurrent sentences

of zero days on Count 1, 365 days on Count 2 and 180 days on Count 3, with all but six

days suspended.

                                       DECISION



                                            4
        Stutz asserts that the trial court improperly entered a judgment of conviction for

Count 2, operating a vehicle with a BAC of at least .15 percent where the trial court also

entered a judgment of conviction for Count 1, operating a vehicle while intoxicated as a

class C misdemeanor. Citing to Sering v. State, 488 N.E.2d 369 (Ind. Ct. App. 1986), she

argues operating a vehicle with a BAC of at least .15 percent is a lesser-included offense

of driving while intoxicated, requiring that the conviction on Count 2 be vacated.

        In Sering, Sering appealed his convictions for operating a vehicle with a BAC of

.10 percent and operating a vehicle while intoxicated. At that time, the former offense

was a class C misdemeanor and the latter offense was a class A misdemeanor.                               In

determining whether the former was a lesser-included offense of the latter, the Sering

court held as follows:

        Having found identity of harm or risk of harm in the two subject alcohol
        related driving offenses, we must determine whether one risk is greater than
        the other. We conclude the legislature has determined the risk occasioned
        by the intoxicated operator is greater than the risk occasioned by the BAC
        of .10% operator. This legislative intent is evidenced by the disparate
        classification of the two offenses; operating while intoxicated is a class A
        misdemeanor while operating with a BAC of .10% is a class C
        misdemeanor. This disparity is explained by the fact an intoxicated driver
        has demonstrated an inability to operate a vehicle in a prudent manner.[2]
        Consequently, we can hypothesize the rationality in the difference in
        classification if we recognize some individuals may not be legally
        intoxicated, manifesting an impaired condition and loss of control to such
        an extent that others are endangered, with a BAC of .10%. If that is a valid
        assumption, and we believe it is, the greater harm or risk of harm occurs in
        the operation of a vehicle while intoxicated.

        2
           Intoxicated means under the influence of alcohol so that “there is an impaired condition of
thought and action and the loss of normal control of a person’s faculties.” I.C. § 9–13–2–86. “Proof of
intoxication does not require proof of blood alcohol content; it is sufficient to show that the defendant was
impaired.” Gatewood v. State, 921 N.E.2d 45, 48 (Ind. Ct. App. 2010), trans. denied.
                                                     5
               We conclude, therefore, that operating a vehicle with BAC of .10%
       is a lesser included offense of operating a vehicle while intoxicated because
       the former offense differs from the latter offense in that a less serious risk
       of harm to the public interest is required to establish its commission.

Sering, 488 N.E.2d at 376 (original footnotes omitted) (emphasis added).

       Effective July 2000, the legislature amended Indiana Code section 9-30-5-1 to add

the offense of operating a vehicle with a BAC of at least .15 percent, which it classified

as a class A misdemeanor. See I.C. § 9-30-5-1(b). Furthermore, in 2001,

       the Legislature substantially altered the [operating while intoxicated
       (“OWI”)] statutes by redefining intoxication and establishing two separate
       misdemeanor classes for operating a vehicle while intoxicated. The effect
       of these changes was to remove the “endangerment” requirement from the
       general definition of intoxication and create the new offense of Class C
       misdemeanor OWI without an endangerment requirement.

Vanderlinden v. State, 918 N.E.2d 642, 645 (Ind. Ct. App. 2009) (internal citation

omitted), trans. denied.

              Thus, there are two statutes that criminalize drunken driving:
       Section 1 punishes operating a motor vehicle with a certain BAC and
       elevates the offense if the person’s BAC exceeds a certain threshold; and
       Section 2 punishes operating a motor vehicle while simply “intoxicated”—
       without reference to the person’s BAC—and elevates the offense if the
       manner in which the person operates the vehicle endangers a person.

Simmons v. State, 962 N.E.2d 86, 91-92 (Ind. Ct. App. 2011).

       Given the amendments to the applicable statutes, we cannot say that Sering

applies. Clearly, the classification of operating a vehicle with a BAC of at least .15

percent as a class A misdemeanor and that of driving while intoxicated as a class C

misdemeanor is evidence that the legislature has determined that the former offense

                                             6
constitutes a greater risk than the latter offense. We therefore conclude that class A

misdemeanor operating a vehicle with a BAC of at least .15 percent is not a lesser

included offense of class C misdemeanor operating while intoxicated. Cf. Rouse v. State,

525 N.E.2d 1278, 1281 (Ind. Ct. App. 1988) (finding that operating a motor vehicle with

a BAC of at least .10 percent or more, causing death, could not be the lesser included

offense of driving while intoxicated, causing death, because “both offenses are Class C

felonies, thus, indicating a legislative determination that the offenses are of equal harm or

risk of harm”), trans. denied. We therefore affirm the trial court’s entry of a judgment of

conviction for Count 2, operating a vehicle with a BAC of at least .15 percent, a class A

misdemeanor. We, however, remand with instructions to the trial court to vacate Stutz’s

conviction for operating while intoxicated as a Class C misdemeanor, as it should be

merged with the conviction for operating a vehicle with a BAC of at least .15 percent;

furthermore, the abstract of judgment shall be amended accordingly.

       Affirmed and remanded with instructions.

RILEY, J., and NAJAM, J., concur.




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