MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                       Oct 16 2015, 8:51 am
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
Barbara J. Simmons                                       Gregory F. Zoeller
Oldenburg, Indiana                                       Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason Medley,                                            October 16, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1503-CR-178
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven J. Rubick,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G19-1412-CM-56529



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-178 | October 16, 2015        Page 1 of 9
[1]   Jason Medley appeals his convictions for operating a vehicle while intoxicated

      endangering a person as a class A misdemeanor and operating a vehicle with an

      alcohol concentration equivalent (“ACE”) of .15 or more as a class A

      misdemeanor. Medley raises two issues which we revise and restate as:


        I.    Whether his convictions violate double jeopardy principles; and


       II.    Whether the evidence is sufficient to sustain his convictions.


      We affirm in part, reverse in part, and remand.


                                      Facts and Procedural History

[2]   On the evening of December 26, 2014, David Duchnowski was driving a

      Channel 13 news van on 16th Street and Shadeland Avenue in Marion County,

      Indiana, when he turned into the lane behind Medley, who was driving a

      pickup truck. While the two vehicles were stopped at a red light, Medley began

      backing his truck toward the van, stopped, but subsequently drifted further

      backward into the van. The crash caused some minor damage to the vehicles.

      Before Duchnowski could exit the van to observe the damage, Medley quickly

      exited his truck and approached him in an angry manner. Duchnowski

      observed that Medley appeared to be intoxicated and called 911.


[3]   Officer Richard Lavish with the Indianapolis Metropolitan Police Department

      arrived at the scene, and Duchnowski explained to him what had happened and

      stated that he felt “that [Medley] needed to be off the streets [be]cause he

      appeared very intoxicated.” Transcript at 13. Officer Lavish went to speak


      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-178 | October 16, 2015   Page 2 of 9
      with Medley, and when Medley opened the driver’s side door of his truck

      Officer Lavish immediately observed the smell of alcohol emanating from

      inside. Officer Lavish observed that Medley’s speech was very slurred and that

      he exhibited poor manual dexterity in gathering his documents for the crash

      report. Officer Lavish requested that a DUI car come to the scene.


[4]   Lieutenant Mark McCardia subsequently arrived with the DUI car and asked

      Medley to step out of his truck, and Medley had to pull himself out, swaying

      and staggering. Lieutenant McCardia administered the horizontal gaze

      nystagmus test and Medley failed the test, exhibiting six out of six cues of

      intoxication. Medley told the officers that he had had approximately two beers

      and two more alcoholic drinks. Lieutenant McCardia thought that Medley was

      too intoxicated to take any further field sobriety tests without possibly injuring

      himself and offered to administer a certified chemical test, which Medley

      repeatedly refused. Medley was then arrested, placed in handcuffs, and became

      irate and disorderly. Lieutenant McCardia subsequently obtained a search

      warrant to test Medley’s blood for the presence of ethyl alcohol, and the test

      revealed that his blood contained an alcohol concentration of .30 grams per 100

      milliliters.


[5]   On December 30, 2014, Medley was charged with Count I, operating a vehicle

      while intoxicated endangering a person as a class A misdemeanor, and Count

      II, operating a vehicle with an ACE of .15 or more as a class A misdemeanor.

      On March 2, 2015, the court held a bench trial in which evidence consistent

      with the foregoing was presented. The court found Medley guilty as charged

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-178 | October 16, 2015   Page 3 of 9
      and sentenced him to 365 days, including thirty days executed followed by 335

      days suspended to probation, concurrent on each count.


                                                  Discussion

                                                         I.


[6]   The first issue is whether Medley’s convictions violate double jeopardy

      principles. The Indiana Constitution provides that “[n]o person shall be put in

      jeopardy twice for the same offense.” IND. CONST. art. 1, § 14. The Indiana

      Supreme Court has held that “two or more offenses are the ‘same offense’ in

      violation of Article I, Section 14 of the Indiana Constitution, 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.” Richardson v. State, 717

      N.E.2d 32, 49 (Ind. 1999).


[7]   Under the actual evidence test, the evidence presented at trial is examined to

      determine whether each challenged offense was established by separate and

      distinct facts. Lee v. State, 892 N .E.2d 1231, 1234 (Ind. 2008). To show that

      two challenged offenses constitute the “same offense” in a claim of double

      jeopardy, a defendant must demonstrate a reasonable possibility that the

      evidentiary facts used by the fact-finder to establish the essential elements of

      one offense may also have been used to establish the essential elements of a

      second challenged offense. Id. The Indiana Supreme Court has determined the

      possibility to be remote and speculative and therefore not reasonable when


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      finding no sufficiently substantial likelihood that the fact-finder used the same

      evidentiary facts to establish the essential elements of two offenses. Hopkins v.

      State, 759 N.E.2d 633, 640 (Ind. 2001) (citing Long v. State, 743 N.E.2d 253, 261

      (Ind. 2001), reh’g denied; Redman v. State, 743 N.E.2d 263, 268 (Ind. 2001)); see

      also Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999), cert. denied, 530 U.S. 1247,

      120 S. Ct. 2697 (2000).


[8]   In addition, Indiana courts “have long adhered to a series of rules of statutory

      construction and common law that are often described as double jeopardy, but

      are not governed by the constitutional test set forth in Richardson.” Guyton v.

      State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d

      826, 830 (Ind. 2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J.,

      concurring))). “Even where no constitutional violation has occurred, multiple

      convictions may nevertheless violate the ‘rules of statutory construction and

      common law that are often described as double jeopardy, but are not governed

      by the constitutional test set forth in Richardson.’” Vandergriff v. State, 812

      N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (quoting Pierce, 761 N.E.2d at 830),

      trans. denied. As enumerated in Justice Sullivan’s concurrence in Richardson and

      endorsed by the Indiana Supreme Court in Guyton, five additional categories of

      double jeopardy exist: (1) conviction and punishment for a crime which is a

      lesser-included offense of another crime for which the defendant has been

      convicted and punished; (2) conviction and punishment for a crime which

      consists of the very same act as another crime for which the defendant has been

      convicted and punished; (3) conviction and punishment for a crime which

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-178 | October 16, 2015   Page 5 of 9
       consists of the very same act as an element of another crime for which the

       defendant has been convicted and punished; (4) conviction and punishment for

       an enhancement of a crime where the enhancement is imposed for the very

       same behavior or harm as another crime for which the defendant has been

       convicted and punished; and (5) conviction and punishment for the crime of

       conspiracy where the overt act that constitutes an element of the conspiracy

       charge is the very same act as another crime for which the defendant has been

       convicted and punished. See Guyton, 771 N.E.2d at 1143; Richardson, 717

       N.E.2d at 55-56 (Sullivan, J., concurring).


[9]    Medley argues that his convictions were both based upon “[t]he same behavior

       – operating a vehicle while intoxicated . . . .” Appellant’s Brief at 11. The State

       concedes that Medley’s convictions under Counts I and II violate double

       jeopardy principles and requests that this court vacate one of the convictions.

       The State notes that this court may vacate either of Medley’s convictions

       because both were charged as class A misdemeanors, and Medley received

       identical, concurrent sentences on each conviction.


[10]   Based upon the State’s concession and our review of the record, we conclude

       that Medley’s convictions violate double jeopardy principles. A violation of

       double jeopardy principles requires that we vacate the conviction with the less

       severe penal consequences. Moala v. State, 969 N.E.2d 1061, 1065 (Ind. Ct.

       App. 2012). As noted by the State both convictions were class A

       misdemeanors, and Medley received identical sentences on each count. We

       elect to vacate the conviction under Count I for operating a vehicle while

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-178 | October 16, 2015   Page 6 of 9
       intoxicated endangering a person as a class A misdemeanor and to leave

       Medley’s conviction under Count II standing, and we remand to the trial court

       with instructions to enter an amended abstract of judgment and an amended

       sentencing order.


                                                         II.


[11]   The next issue is whether the evidence is sufficient to sustain Medley’s

       convictions. Because we elect to vacate Medley’s conviction under Count I, the

       only remaining conviction is for Count II, operating a vehicle with an ACE of

       .15 or more. Medley does not challenge the sufficiency of the evidence

       regarding Count II, instead arguing only that the State failed to prove the

       endangerment element under Count I. Thus, we find that Medley waived his

       challenge that the State failed to prove the elements of operating a vehicle with

       an ACE of .15 or more under Count II. See Cooper v. State, 854 N.E.2d 831, 834

       n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it

       was “supported neither by cogent argument nor citation to authority”); Shane v.

       State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived

       argument on appeal by failing to develop a cogent argument); Smith v. State, 822

       N.E.2d 193, 202-203 (Ind. Ct. App. 2005) (“Generally, a party waives any issue

       raised on appeal where the party fails to develop a cogent argument or provide

       adequate citation to authority and portions of the record.”), trans. denied.


[12]   Nevertheless, we observe that the offense of operating a vehicle with an ACE of

       .15 or more is governed by Ind. Code § 9-30-5-1(b), which provides in part that


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-178 | October 16, 2015   Page 7 of 9
       “[a] person who operates a vehicle with an alcohol concentration equivalent to

       at least fifteen-hundredths (0.15) gram of alcohol per: (1) one hundred (100)

       milliliters of the person’s blood . . . commits a Class A misdemeanor.” Thus, to

       convict Medley under Count II, the State was required to prove that he

       operated a vehicle with an alcohol concentration equivalent to at least fifteen-

       hundredths grams of alcohol per 100 milliliters of his blood.


[13]   Our review of the record reveals that Medley was operating his vehicle when

       the rear of his vehicle impacted the news van. Officers arrested Medley and

       had a blood alcohol test performed, the results of which revealed that he had an

       ACE of .3 grams per 100 milliliters, which is double the alcohol concentration

       necessary to convict under the statute. We conclude that the State presented

       evidence of a probative nature from which the fact-finder could find beyond a

       reasonable doubt that Medley committed the offense of operating a vehicle with

       an ACE of .15 or more. See Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)

       (noting that when reviewing the sufficiency of the evidence to support a

       conviction, we must consider only the probative evidence and reasonable

       inferences supporting the conviction and that we affirm the conviction unless

       “no reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt” (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000))).


                                                   Conclusion

[14]   For the foregoing reasons, we affirm Medley’s conviction of operating a vehicle

       with an ACE of .15 or more and remand with instructions that the court vacate


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-178 | October 16, 2015   Page 8 of 9
       his conviction for operating a vehicle while intoxicated endangering a person

       based upon double jeopardy principles.


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


       Riley, J., and Altice, J., concur.




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