MEMORANDUM DECISION
                                                                  Oct 29 2015, 9:58 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
Suzy St. John                                             Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
     COURT OF APPEALS OF INDIANA
William Craven,                                           October 29, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1502-CR-107
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Amy M. Jones,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49F08-1405-CM-
                                                          26546


Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015   Page 1 of 6
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, William Craven (Craven), appeals his conviction for

      Count I, operating a vehicle while intoxicated in a manner that endangers a

      person, a Class A misdemeanor, Ind. Code § 9-30-5-2(b); and Count II,

      operating a vehicle with an alcohol concentration of at least 0.08% but less than

      0.15%, a Class C misdemeanor, I.C. § 9-30-5-1(a).


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


                                                     ISSUE

[3]   Craven raises one issue on appeal, which we restate as follows: Whether

      Craven’s conviction for two Counts of driving while intoxicated, one as a Class

      A misdemeanor and the other as a Class C misdemeanor, violates Indiana

      Code section 35-38-1-6.


                           FACTS AND PROCEDURAL HISTORY

[4]   Shortly before 3:00 a.m. on December 28, 2013, Erika Wells (Wells) was

      awakened by a loud noise. When she went to her bedroom window to

      investigate, Wells observed a vehicle “doing donuts in the parking lot” of the

      nearby golf course clubhouse. (Tr. p. 6). Wells continued watching from her

      window as the vehicle—a red GMC pickup truck—pulled out of the parking lot

      and traveled “really fast down the road, hit an embankment and flipped upside

      down in [her] neighbor’s backyard.” (Tr. pp. 6-7). Wells ran outside to check

      on the vehicle’s occupants while another neighbor reported the accident to the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015   Page 2 of 6
      Indianapolis Metropolitan Police Department (IMPD). Wells identified

      Craven as the driver of the vehicle.


[5]   A short time later, IMPD Officer Clinton Ellison (Officer Ellison) arrived on

      the scene and observed Craven, who had some minor bleeding and appeared to

      be in pain, sitting on the ground next to the overturned truck. Craven’s

      passenger was standing nearby. Officer Ellison inquired about the cause of the

      accident, and Craven answered “that he was being stupid, that he was driving

      too fast, lost control and the crash occurred.” (Tr. p. 25). During their

      interaction, Officer Ellison detected the odor of alcohol on Craven’s breath and

      also noticed that Craven’s eyes were bloodshot and his speech was slurred.

      When asked, Craven admitted that he had consumed alcoholic beverages. Due

      to Craven’s injuries, Officer Ellison was unable to conduct field sobriety tests.

      Craven was transported to the hospital, where a chemical blood test was

      performed which revealed that Craven’s blood alcohol content (BAC) was

      within the range of 0.13% to 0.14%. As a result of the accident, Craven

      sustained “substantial internal injuries.” (Tr. p. 31).


[6]   On May 21, 2014,1 the State filed an Information, charging Craven with Count

      I, operating a vehicle while intoxicated in a manner that endangered a person, a

      Class A misdemeanor, I.C. § 9-30-5-2(b); and Count II, operating a vehicle with

      a BAC equivalent to at least 0.08% but less than 0.15%, a Class C



      1
        Although the Chronological Case Summary states that the case was filed on May 21, 2014, the file stamp
      on the Information indicates that the filing date was May 12, 2014.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015          Page 3 of 6
      misdemeanor, I.C. § 9-30-5-1(a). On January 29, 2015, the trial court

      conducted a bench trial and, at the close of the evidence, found Craven guilty on

      both Counts. Immediately following its judgment, the trial held a

      sentencing hearing. On Count I, the trial court imposed 365 days of probation,

      with 275 days suspended and 90 days executed on home detention through

      Community Corrections. The trial court stipulated that if Craven completed his

      mandatory substance abuse evaluation and treatment and paid his fees prior to

      the expiration of the probationary period, his probation would terminate early.

      As to Count II, the trial court ordered a concurrent sentence of 90 days

      executed on home detention through Community Corrections.


[7]   Craven now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

[8]   Craven claims that his conviction for both Counts of operating while

      intoxicated runs afoul of the double jeopardy principles embodied in Indiana

      Code section 35-38-1-6.2 Specifically, Craven contends that operating a vehicle

      with a BAC of at least 0.08% but less than 0.15%, a Class C misdemeanor, is a

      lesser included offense of operating a vehicle while intoxicated in a manner that

      endangers a person, a Class A misdemeanor. Therefore, he argues that his




      2
       Craven does not present a double jeopardy argument based upon the United States or Indiana
      Constitutions; rather, he “relies solely upon a statutory double jeopardy argument.” Parks v. State, 734
      N.E.2d 694, 701 n.9 (Ind. Ct. App. 2000), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015               Page 4 of 6
       conviction and sentence on the lesser offense must be vacated. The State agrees

       with Craven.


[9]    Indiana Code section 35-38-1-6 provides that if “a defendant is charged with an

       offense and an included offense in separate counts[] and . . . is found guilty of

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

       for the included offense.” This is because a conviction of both an offense and

       its lesser included offense is tantamount “to convicting a defendant twice for the

       same conduct.” Parks, 734 N.E.2d at 701. Our court has previously

       determined that “an offense is a lesser included offense 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) (ellipsis in original) (quoting Sering v. State, 488 N.E.2d

       369, 375 (Ind. Ct. App. 1986)) (internal quotation marks omitted).

[10]   Indiana’s General Assembly has classified operating a vehicle while intoxicated

       in a manner that endangers a person as a Class A misdemeanor, whereas

       operating a vehicle with a BAC of at least 0.08% but less than 0.15% is a Class

       C misdemeanor. Thus, the legislature has clearly determined that the risk

       occasioned by the intoxicated person who drives in a manner that endangers a

       person is greater than the risk occasioned by the driver with a BAC of at least

       0.08% but less than 0.15%. See Sering, 488 N.E.2d at 376. “Given the disparate

       classifications of the two alcohol-related offenses, it is evident that the

       legislature intended the [latter] to be a lesser-included offense of the [former].”

       Watson, 972 N.E.2d at 384. Although “[t]he State can charge a defendant with

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-107 | October 29, 2015   Page 5 of 6
       both the greater and the lesser included offense, . . . convictions for both

       offenses cannot stand.” Hornback v. State, 693 N.E.2d 81, 85 (Ind. Ct. App.

       1998). Accordingly, we remand this case to the trial court with instructions to

       vacate Craven’s Class C misdemeanor conviction for operating a vehicle with a

       BAC of at least 0.08% but less than 0.15%.


                                                CONCLUSION

[11]   Based on the foregoing, we affirm Craven’s conviction for Count I and

       conclude that Craven’s conviction for Count II, operating a vehicle with a BAC

       of at least 0.08% but less than 0.15%, a Class C misdemeanor, violates Indiana

       Code section 35-38-1-6 because it is a lesser included offense of operating a

       vehicle while intoxicated in a manner that endangers another person, a Class A

       misdemeanor.


[12]   Affirmed in part, reversed in part, and remanded.


[13]   Brown, J. and Altice, J. concur




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