                                                                                 FILED
                                                                             Jan 24 2019, 8:48 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Troy D. Warner                                             Curtis T. Hill, Jr.
      Deputy Public Defender                                     Attorney General of Indiana
      South Bend, Indiana
                                                                 Tyler G. Banks
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      James Woodrow Morrison,                                    January 24, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-1073
              v.                                                 Appeal from the St. Joseph
                                                                 Superior Court
      State of Indiana,                                          The Honorable Elizabeth C.
      Appellee-Plaintiff.                                        Hurley, Judge
                                                                 Trial Court Cause No.
                                                                 71D08-1702-F3-11



      Shepard, Senior Judge.


[1]   James Morrison claims his convictions of both resisting law enforcement while

      operating a vehicle in a manner that causes death and operating a vehicle with a

      controlled substance in the body causing serious bodily injury violate his right

      against double jeopardy. Concluding that his rights were not violated, we

      affirm.
      Court of Appeals of Indiana | Opinion 18A-CR-1073 | January 24, 2019                           Page 1 of 5
                                    Facts and Procedural History
[2]   In February 2017, a police officer observed a vehicle he believed was recently

      stolen. After using the plate number to confirm this belief, the officer attempted

      to stop the vehicle. The driver of the vehicle, who was later identified as

      Morrison, accelerated and refused to stop for the officer. Morrison disregarded

      a red traffic light and collided with a pick-up truck, killing its driver. Morrison’s

      three passengers were also severely injured. The collision involved four other

      vehicles that were struck by either the stolen vehicle, the pick-up truck, or

      debris. Morrison admitted to medical personnel that he had used heroin earlier

      in the day, which was later confirmed by a blood test.


[3]   Morrison was charged with Count I resisting law enforcement while operating a
                                                                             1
      vehicle in a manner that causes death, a Level 3 felony; Count II operating a

      vehicle with a controlled substance in the blood causing death, a Level 4
                  2
      felony; and Counts III-V operating a vehicle with a controlled substance in the
                                                                                 3
      body causing serious bodily injury, all as Level 6 felonies. Pursuant to a plea

      agreement, he pleaded guilty to all the charges. The plea agreement also

      reserved Morrison’s “right to appeal his sentence regarding double jeopardy

      issues that may be directly related to issues raised by” this Court’s decision in




      1
          Ind. Code §§ 35-44.1-3-1(a)(3), (b)(3) (2016).
      2
          Ind. Code § 9-30-5-5(b)(2) (2016).
      3
          Ind. Code § 9-30-5-4(a)(2) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-1073 | January 24, 2019           Page 2 of 5
      Edmonds v. State, 86 N.E.3d 414 (Ind. Ct. App. 2017), trans. granted. Appellant’s

      App. Vol. 2, p. 37.


[4]   Pursuant to the parties’ agreement, sentencing was left to the court’s discretion.

      The court entered judgment on all counts but did so on the lesser-included

      offense of operating a vehicle while intoxicated as a Class A misdemeanor for

      Count II. The court sentenced Morrison to sixteen years on Count I and twelve

      months on Count II, to be served concurrently, and to thirty months each on

      Counts III-V, to be served consecutively to each other as well as consecutively

      to Counts I and II. The total is thus twenty-three and one-half years.


                                                        Issue
[5]   Morrison presents one issue: whether his convictions violate double jeopardy.


                                     Discussion and Decision
[6]   Morrison contends that, in light of our Supreme Court’s decision in Edmonds v.

      State, 100 N.E.3d 258 (Ind. 2018), his convictions of (1) resisting law

      enforcement while operating a vehicle in a manner that causes death, and (2)

      operating a vehicle with a controlled substance in the body causing serious
                                                                                         4
      bodily injury constitute a statutory double jeopardy violation.




      4
       Morrison’s plea agreement reserved his right to appeal his sentence based upon this Court’s decision in
      Edmonds, 86 N.E.3d 414. However, following Morrison’s plea but prior to the filing of his appellate brief, our
      Supreme Court granted transfer in Edmonds and issued a decision in June 2018. Accordingly, on appeal
      Morrison bases his argument on the decision of our Supreme Court.

      Court of Appeals of Indiana | Opinion 18A-CR-1073 | January 24, 2019                              Page 3 of 5
[7]    In Edmonds, the defendant’s convictions included one count of felony resisting

       law enforcement by fleeing in a vehicle causing death and two counts of felony

       resisting law enforcement by fleeing in a vehicle causing serious bodily injury.

       The Supreme Court held that Indiana Code section 35-44.1-3-1, which makes

       resisting law enforcement unlawful, authorizes only one felony conviction

       where a single act of resisting law enforcement while operating a vehicle causes

       both death and serious bodily injury, regardless of how many people are

       harmed. Id. at 262-63.


[8]    Here, Morrison was convicted of only one offense under the resisting statute—

       resisting law enforcement while operating a vehicle in a manner that causes

       death. His convictions for causing serious bodily injury while operating a

       vehicle arise from the operating while intoxicated statute. See Appellant’s App.

       Vol. 2, pp. 146-47; see also Ind. Code § 9-30-5-4(a)(2). In Edmonds, the Supreme

       Court plainly stated that its decision was specific to and rested only on the

       statutory grounds of the resisting statute. While a perpetrator who races away

       from police after a multiple victim collision commits only one “resisting,” a

       perpetrator whose driving injures multiple victims commits multiple offenses

       under the operating statutes.


[9]    Morrison’s convictions do not create a statutory double jeopardy violation.


[10]   In his brief to this Court, Morrison also includes a constitutional double jeopardy

       analysis. Assuming, arguendo, that his plea agreement permits a constitutional

       double jeopardy challenge, we conclude there is none. Morrison’s convictions


       Court of Appeals of Indiana | Opinion 18A-CR-1073 | January 24, 2019      Page 4 of 5
       for resisting law enforcement and operating a vehicle causing serious bodily

       injury involve separate victims. The driver of the pick-up truck is the victim of

       Morrison’s resisting conviction, and Morrison’s three passengers are the

       victims, individually, of his three convictions of operating a vehicle causing

       serious bodily injury. See Rawson v. State, 865 N.E.2d 1049 (Ind. Ct. App. 2007)

       (stating that our Supreme Court has repeatedly held that where convictions

       arise from situation where separate victims are involved, no double jeopardy

       violation exists), trans. denied.


                                                  Conclusion
[11]   We conclude Morrison’s convictions do not violate double jeopardy.


[12]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1073 | January 24, 2019      Page 5 of 5
