                                                                                                    FILED
                                                                                              08/31/2017, 9:19 am
                                                                                                    CLERK
                                                                                                Indiana Supreme Court
ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE                        Court of Appeals
                                                                                                     and Tax Court

Michael R. Fisher                                    Curtis T. Hill, Jr.
Marion County Public Defender Agency                 Attorney General of Indiana
Indianapolis, Indiana
                                                     Katherine Cooper
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jordan Stafford,                                           August 31, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1609-CR-2012

        v.                                                 Appeal from the Marion Superior
                                                           Court

State of Indiana,                                          The Honorable Sheila Carlisle,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           49G03-1511-FC-39288




Bradford, Judge.




Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017                  Page 1 of 11
                                           Case Summary
[1]   On the morning of May 9, 2014, Coty DeMoss and Kenneth Duerson were

      working on a traffic project on Interstate 69 in Marion County. DeMoss and

      Duerson were helping to dismantle an arrow board in order to open a closed

      lane of traffic. DeMoss and Duerson were completing this task when a truck

      driven by Appellant-Defendant Jordan Stafford crashed into the back of another

      truck parked at the worksite, pinning one of the workers between the arrow

      board and truck and killing them both. Stafford was ultimately convicted of

      two counts of reckless operation in a highway work zone causing death and

      sentenced to an aggregate sentence of ten years of incarceration. Stafford

      contends that his one act of reckless driving in a highway work zone cannot

      sustain two convictions, even though it caused two deaths. In light of the

      Indiana Supreme Court’s holding in Kelly v. State, 539 N.E.2d 25 (Ind. 1989),

      we are constrained to agree. Consequently, we reverse in part and remand for

      further proceedings.



                             Facts and Procedural History
[2]   On the morning of May 9, 2014, DeMoss and Duerson were working for Rieth-

      Riley Construction on Interstate 69 north of 82nd Street in Marion County.

      DeMoss had worked for Rieth-Riley for six years and Duerson was completing

      his first day with the company. At approximately 5:30 a.m., Duerson and

      another worker, Jeff Darter, were asked to dismantle an arrow board that had

      been used to divert traffic from a closed lane. Darter hooked the arrow board to

      Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017   Page 2 of 11
      the back of a Rieth-Riley truck while Duerson and other workers removed

      placards from the lane that was no longer going to be closed. A safety strobe

      and “[f]our-way flashers” on Darter’s truck were activated, and the light from

      the arrow board was still on. Tr. Vol. II p. 212.


[3]   While completing his work, Darter heard squealing tires and a crash, at which

      point he jumped over a concrete barrier. Darter soon determined that DeMoss

      and Duerson were missing, and ran to the arrow board where they had been

      working. DeMoss and Duerson had been “cut in two[,]” and Darter saw their

      blood and organs. Tr. Vol. II p. 219. A truck driven by Stafford had crashed

      into the back of Darter’s truck with sufficient force to shove the bed of Darter’s

      truck into the cab, preventing Darter from opening its doors. Stafford’s truck

      came to rest against the concrete barrier beyond Darter’s truck, with the left

      front tire knocked off and the front end extensively damaged. Indiana State

      Police Trooper Miles Edwards responded and saw that one of the bodies was

      wedged between the arrow board and back of Darter’s truck and was missing

      the left leg, while the other was nearby, cut in half with the upper portion lying

      on the other side of Stafford’s truck. It was determined that Stafford was

      initially travelling at a speed of around seventy-four miles per hour, which had

      slowed to approximately sixty-eight miles per hour by the time he hit Darter’s

      truck. Witnesses recalled that Stafford had not attempted to switch lanes

      despite a visible arrow instructing drivers to do so.


[4]   On November 5, 2015, the Marion County grand jury indicted Stafford on two

      counts of Class C felony reckless operation in a highway work zone causing

      Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017   Page 3 of 11
      death and two counts of Class C felony failure to obey traffic control device

      resulting in death. On July 13, 2016, a petit jury found Stafford guilty as

      charged. On August 10, 2016, the trial court vacated the two failure-to-obey-

      traffic-control-device-resulting-in-death convictions and sentenced Stafford to

      five years of incarceration for each count of reckless operation in a highway

      work zone causing death, to be served consecutively, for an aggregate sentence

      of ten years.


                                 Discussion and Decision
                Whether Stafford’s Conduct May Sustain Two
                  Convictions for Reckless Operation in a
                   Highway Work Zone Causing Death
[5]   Stafford contends that he cannot be convicted of and sentenced for the deaths of

      both DeMoss and Duerson. Although Stafford frames this a challenge based on

      constitutional prohibitions against double jeopardy, it is actually a challenge

      based on statutory interpretation and the Indiana common-law principle that

      one may not be convicted of and punished “for a crime which consists of the

      very same act as another crime for which the defendant has been convicted and

      punished.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (citation

      omitted). Stafford contends that because Indiana Code section 9-21-8-56 is

      written as a conduct-based, rather than result-based, statute, his conduct may

      sustain only one conviction, even though there were multiple victims.




      Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017   Page 4 of 11
[6]   “The interpretation of a statute is a question of law reserved for the courts.”

      Scott v. Irmeger, 859 N.E.2d 1238, 1239 (Ind. Ct. App. 2007).


                 A statute should be construed so as to ascertain and give effect to
                 the intention of the legislature as expressed in the statute. In so
                 doing, the objects and purposes of the statute in question must be
                 considered as well as the effect and consequences of such
                 interpretation. When interpreting the words of a single section of
                 a statute, this court must construe them with due regard for all
                 other sections of the act and with regard for the legislative intent
                 to carry out the spirit and purpose of the act. We presume that
                 the legislature intended its language to be applied in a logical
                 manner consistent with the statute’s underlying policy and goals.
                 Rupert v. State, 717 N.E.2d 1209, 1210 (Ind. Ct. App. 1999).
      Fuller v. State, 752 N.E.2d 235, 237-38 (Ind. Ct. App. 2001).


[7]   In May of 2014,1 Indiana Code 9-21-8-56 provided, in relevant part, as follows:

                 (b) [A] person who recklessly operates a vehicle in the immediate
                 vicinity of a highway work zone when workers are present
                 commits a Class A misdemeanor.
                 ….
                 (h) An offense under subsection (b), (c), (d), or (e) is a Class C
                 felony if the offense results in the death of a worker in the
                 worksite.
[8]   Stafford contends that because Indiana Code section 9-21-8-56 is a crime

      defined by the conduct required to commit it—and not by any particular

      result—two convictions for the same act of reckless driving are prohibited.




      1
          Under the current form of the statute, Stafford’s convictions would be for Level 5 felonies.

      Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017                         Page 5 of 11
       While acknowledging the horrific results of Stafford’s recklessness, precedent

       requires that one of his two convictions be vacated.


[9]    In Kelly v. State, 527 N.E.2d 1148 (Ind. Ct. App. 1988), trans. granted and

       summarily affirmed, 539 N.E.2d 25 (Ind. 1989) (“Kelly I”), we reversed Kelly’s

       conviction for operating a vehicle while intoxicated (“OWI”) causing serious

       bodily injury. Id. at 1155. The intoxicated Kelly was operating a tractor-trailer

       that became involved in an accident resulting in the death of one and the

       serious bodily injury of another. Id. at 1149–50. Kelly was tried and convicted

       of one count of OWI resulting in death and one count of OWI resulting in

       serious bodily injury. Id. at 1155.


[10]   We concluded that Kelly’s two convictions for one act of OWI could not stand:

               The relevant statutes read:
                        A person who operates a vehicle while intoxicated
                        commits a class A misdemeanor.
               IC 9-11-2-2 (Burns 1987).
                        A person who violates [IC 9-11-2-2] commits a class D
                        felony if the crime results in serious bodily injury to
                        another person.
               IC 9-11-2-4 (Burns 1987).
                        A person who violates [IC 9-11-2-2] commits a class C
                        felony if the crime results in the death of another person.
               IC 9-11-2-5 (Burns 1987).
               In crimes such as murder, manslaughter, battery and reckless
               homicide, the gravamen of the offense is causing the death or
               injury of another person, i.e., the result is part of the definition of
               the crime. Thus, in these offenses where several deaths or

       Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017     Page 6 of 11
        injuries occur in the course of a single incident, the offense
        prohibited by statute has been violated several times over. The
        separate victims represent different offenses because conduct has
        been directed at each particular victim.
        In contrast, in defining the subject offense, the legislature chose
        to use the result of serious bodily injury or death as a factor
        enhancing the punishment for the crime rather than as an aspect
        of the crime itself, i.e., as part of the definition of the crime. IC 9-
        11-2-2 defines the crime as operating a vehicle while intoxicated.
        That definition consists of the prohibited conduct, operating a
        vehicle, and the presence of an attendant circumstance,
        intoxication. It does not include or require the necessary conduct
        produce a specific result. Thus, the crime is committed although
        no specific result occurs. This intent is irrebuttably evidenced by
        the language of IC 9-11-2-4 and 9-11-2-5 which identify the crime
        as a violation of IC 9-11-2-2: “A person who violates [IC 9-11-2-
        2] commits a class … felony if the crime results in….” (emphasis
        added). Thus, we are compelled to conclude Kelly committed
        only one offense of operating a vehicle while intoxicated
        although with multiple results. The multiple egregious results do
        not increase the number of crimes, only the penalty. Had the
        legislature intended otherwise, mechanisms were available to
        express that intent. For example, the crime could have been
        defined as “whoever kills another human being while operating a
        vehicle while intoxicated commits a class C felony.” There, the
        result of the conduct is part of the definition of the crime. An
        alternative approach would have been the enactment of a
        provision stating, in effect, that if more than one person dies
        and/or suffers serious bodily injuries as a result of violating IC 9-
        11-2-2, each death and/or serious bodily injury constitutes a
        separately punishable offense. See e.g. Alaska Statutes 11.41.135.
        Inasmuch as the expressed intent of the General Assembly is that
        the crime is operating a vehicle while intoxicated, with the result
        (if any) affecting only the penalty, Kelly’s separate convictions,
        arising from the single accident, cannot stand. Therefore we
        must vacate his conviction for the class D felony.

Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017     Page 7 of 11
       Id.


[11]   The Indiana Supreme Court granted both parties’ transfer petitions and

       summarily affirmed our disposition. See Kelly v. State, 539 N.E.2d 25, 26 (Ind.

       1989) (“This interpretation of the statute and this application of the statute by

       the Second District is a true reading of the statute.”) (“Kelly II”). The

       distinction between conduct- and result-based crimes has not been abandoned,

       and the Indiana Supreme Court has more recently applied it to reverse all but

       one of a defendant’s many arson convictions, even though the one fire he set

       had injured several persons. See Mathews v. State, 849 N.E.2d 578, 585 (Ind.

       2006) (“Even though the arson caused bodily injury to multiple people, under

       Kelly, Dorsey can be convicted of only one count of arson elevated to a Class A

       felony because of the resulting bodily injury.”).


[12]   Kelly II is clear on the distinction between conduct- and result-based offenses

       and remains the law in Indiana, as declared by the Indiana Supreme Court. It

       is well-settled that


               [w]e are bound by the decisions of our supreme court. See In re
               Petition to Transfer Appeals, 202 Ind. 365, 376, 174 N.E. 812, 817
               (1931). Supreme court precedent is binding upon us until it is
               changed either by that court or by legislative enactment. Id.
               While Indiana Appellate Rule 65(A) authorizes this Court to
               criticize existing law, it is not this court’s role to “reconsider”
               supreme court decisions.
       Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002), trans. denied.




       Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017    Page 8 of 11
[13]   Turning to Stafford’s challenge, we can discern no meaningful distinction

       between Indiana Code section 9-21-8-56 and the OWI statutes at issue in Kelly

       II. In both cases, the crime was complete when certain conduct occurred,

       without regard to results. Indiana Code subsection 9-21-8-56(b) provides that

       “a person who recklessly operates a vehicle in the immediate vicinity of a

       highway work zone when workers are present commits a Class A

       misdemeanor.” As with the former OWI statutes, the crime is comprised of

       prohibited conduct (operating a vehicle recklessly) and attendant circumstances

       (being in the immediate vicinity of a highway work zone with workers present)

       with no particular result required.


[14]   Also like the former OWI statues, bad results serve only to enhance the penalty

       for the conduct proscribed in subsection 9-21-8-56(b). Indeed, the relevant

       language essentially mirrors that of the former OWI statutes in that it makes it

       clear that the crime is complete when subsection 9-21-8-56(b) is violated: “An

       offense under subsection (b) … is a Class C felony if the offense results in the death

       of a worker in the worksite.” Ind. Code § 9-21-8-56(h) (emphases added). As

       we did in Kelly II, we are compelled to conclude that Stafford committed one

       crime here, albeit one crime with multiple, horrific results.


[15]   It is worth noting that the General Assembly amended the OWI statutes in

       1994 (presumably in response to Kelly II) to allow for multiple convictions when




       Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017    Page 9 of 11
       multiple victims of a single act are involved.2 See Manns v. State, 637 N.E.2d

       842, 844 n.2 (Ind. Ct. App. 1994) (“Now, each death may be separately

       charged.”). The State argues that this is evidence that the General Assembly

       intends for similar statutes, including Indiana Code section 9-21-8-56, to be

       interpreted as allowing for multiple convictions for a single act. If anything, the

       1994 amendments to the OWI statutes undercuts the State’s argument in this

       case. Because Indiana Code section 9-21-8-56 first became law in 2007—

       eighteen years after Kelly II was decided—the much more reasonable conclusion

       is that the General Assembly intended it to be interpreted as a conduct-based

       criminal statute. Suffice it to say that we are unpersuaded by the State’s

       argument.



                                                 Conclusion
[16]   Pursuant to the binding authority of Kelly II, we are required to vacate one of

       Stafford’s convictions for Class C felony reckless operation in a highway work

       zone causing death. Because we have vacated one of Stafford’s convictions, we

       do not reach his sentence challenge and, instead, remand for resentencing on

       the remaining conviction for Class C felony reckless operation in a highway

       work zone causing death. The trial court will impose the appropriate sentence



       2
         Indiana Code section 9-30-5-2 provides that “(a) Except as provided in subsection (b), a person who
       operates a vehicle while intoxicated commits a Class C misdemeanor. (b) An offense described in subsection
       (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.” Indiana
       Code section 9-30-5-4 elevates the level of the OWI if the perpetrator causes serious bodily injury and
       provides that a separate offense is committed for each victim, and Indiana Code section 9-30-5-5 does the
       same in cases where death results.

       Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017                    Page 10 of 11
       as it sees fit under the facts of this case and the statutory sentencing range for

       this crime.


[17]   We reverse the judgment of the trial court in part and remand for further

       proceedings consistent with this opinion.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1609-CR-2012 | August 31, 2017   Page 11 of 11
