MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Oct 13 2017, 9:10 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bernice A. N. Corley                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark Anthony Woelfel,                                    October 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1705-CR-977
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff                                       Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1609-F6-37962



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-977 | October 13, 2017         Page 1 of 6
[1]   Mark Woelfel appeals his convictions for Level 6 felony criminal recklessness

      and Class A misdemeanor domestic battery. He raises the following issues on

      appeal:


              1. Were his convictions supported by sufficient evidence?


              2. Do his convictions violate Indiana’s double jeopardy
              prohibition?


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


                                       Facts & Procedural History


[3]   On the morning of September 16, 2016, Sierra Gruenwald, Woelfel’s girlfriend

      of over two years, was in the process of moving into a new residence. The

      couple began arguing early that morning, and the argument continued as they

      loaded bags of Gruenwald’s belongings into Woelfel’s truck, drove to

      Gruenwald’s new residence, and unloaded Gruenwald’s belongings. The

      argument finally ended when Woelfel sped off in his truck.


[4]   Shortly after Woelfel left, Gruenwald realized that Woelfel had taken over

      $2000 in cash from among her belongings. Gruenwald called Woelfel and told

      him to return the money, and he said he would only do so if Gruenwald gave

      him the SIM card out of her cell phone. Woelfel then returned to Gruenwald’s

      residence, where he remained seated in his truck in the rear alley. Woelfel and

      Gruenwald argued over whether the money or the SIM card would be provided

      first, and Gruenwald eventually reached into the driver’s-side window, grabbed


      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-977 | October 13, 2017   Page 2 of 6
      the steering wheel, and attempted to grab the bag containing the money. As she

      did so, Woelfel stepped on the gas and accelerated to approximately sixty miles

      per hour as Gruenwald continued to hold on. Woelfel then slammed on the

      brakes and kicked Gruenwald in the chest, knocking her off the vehicle.

      Woelfel then threw Gruenwald’s money out the window and drove away.


[5]   As a result of these events, the State charged Woelfel as follows: Count I, Level

      6 felony criminal recklessness; Count II, Class A misdemeanor domestic

      battery; and Count III, Class A misdemeanor battery resulting in bodily injury.

      A bench trial was held on March 23, 2017, at the conclusion of which Woelfel

      was found guilty of Counts I and II, but acquitted of Count III. In entering its

      judgment, the trial court stated that that Counts I and II were “all kind of . . .

      the same act and so, you know, for purposes of a sentencing, that would merge

      them.” Transcript Vol. 2 at 56. Nevertheless, the trial court subsequently

      entered judgments of conviction and separate sentences on both counts.

      Woelfel now appeals.


                                          Discussion & Decision


                                      1. Sufficiency of the Evidence


[6]   Woelfel first argues that the State presented insufficient evidence to support his

      convictions. In reviewing a challenge to the sufficiency of the evidence, we

      neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.

      State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the

      evidence supporting the conviction and the reasonable inferences flowing

      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-977 | October 13, 2017   Page 3 of 6
      therefrom. Id. If there is substantial evidence of probative value from which a

      reasonable trier of fact could have drawn the conclusion that the defendant was

      guilty of the crime charged beyond a reasonable doubt, the judgment will not be

      disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It

      is not necessary that the evidence overcome every reasonable hypothesis of

      innocence; rather, the evidence is sufficient if an inference may reasonably be

      drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

      (Ind. 2007). Further, the uncorroborated testimony of a single witness is

      sufficient to support a conviction, even where the witness in question is the

      victim. Ferrell v. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991).


[7]   To support a conviction for Level 6 felony criminal recklessness as charged, the

      State was required to prove that Woelfel, while armed with a deadly weapon

      (i.e., his vehicle), knowingly or intentionally performed an act that created a

      substantial risk of bodily injury to Gruenwald. See Ind. Code § 34-42-2-2(a),

      (b)(1)(A) (setting out the elements of Class B misdemeanor criminal

      recklessness and providing that the offense is elevated to a Level 6 felony if

      committed while armed with a deadly weapon). Woelfel’s appellate argument

      is premised on a misunderstanding of the elements of the offense charged.

      Specifically, he asserts that the State was required to prove that Gruenwald

      suffered serious bodily injury as a result of Woelfel’s aggressive driving, as set

      forth in I.C. § 34-42-2-2(b)(1)(B). But to convict Woelfel as charged, the State

      was not required to prove that Gruenwald suffered any actual injury, much less

      serious bodily injury. Rather, the State was required to prove that Woelfel’s


      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-977 | October 13, 2017   Page 4 of 6
      actions created a substantial risk of bodily injury and that he was armed with a

      deadly weapon. It was certainly reasonable for the trial court to find that

      Woelfel created such a risk by accelerating his truck while Gruenwald clung to

      the outside of the vehicle, and Woelfel makes no argument to the contrary.

      Nor does he dispute that a vehicle can be considered a deadly weapon. See

      Johnson v. State, 455 N.E.2d 932, 936 (Ind. 1983). We therefore conclude that

      the State presented sufficient evidence to support Woelfel’s criminal

      recklessness conviction.


[8]   Woelfel also challenges the sufficiency of the evidence to support his domestic

      battery conviction. Although we find his arguments unconvincing, we need not

      address the issue because, as set forth below, the domestic battery conviction

      must be vacated due to a double jeopardy violation.


                                            2. Double Jeopardy


[9]   Woelfel also argues that his convictions violate Indiana’s double jeopardy

      prohibition. The double jeopardy clause found in Article 1, section 14 of the

      Indiana Constitution “was intended to prevent the state from being able to

      proceed against a person twice for the same criminal transgression.” Richardson

      v. State, 717 N.E.2d 32, 49 (Ind. 1999). Two or more offenses are the “same

      criminal transgression” for the purposes of the Indiana double jeopardy clause

      if, “with respect to either the statutory elements of the challenged crimes or the

      actual evidence used to convict, the essential elements of one challenged offense

      also establish the essential elements of another challenged offense.” Id.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-977 | October 13, 2017   Page 5 of 6
[10]   In this case, the trial court expressly found that the criminal recklessness and

       domestic battery offenses were “all kind of . . . the same act” and that they

       would therefore merge. Transcript Vol. 2 at 56. Nevertheless, the trial court

       entered separate convictions and sentences on both counts. The State

       appropriately concedes that this was error. Accordingly, we remand with

       instructions to vacate Woelfel’s domestic battery conviction.


[11]   Judgment affirmed in part, reversed in part, and remanded.


[12]   Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-977 | October 13, 2017   Page 6 of 6
