MEMORANDUM DECISION
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                             FILED
the defense of res judicata, collateral
estoppel, or the law of the case.
                                                                    May 19 2020, 6:22 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Elizabeth A. Flynn                                      Ellen H. Meilaender
Braje, Nelson & James, LLP                              Supervising Deputy Attorney
Michigan City, Indiana                                  General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy Malott,                                         May 19, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2620
        v.                                              Appeal from the LaPorte Superior
                                                        Court
State of Indiana,                                       The Honorable Michael S.
Appellee-Plaintiff.                                     Bergerson, Judge
                                                        Trial Court Cause No.
                                                        46D01-1810-F4-1114



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020                 Page 1 of 25
                                          Case Summary
[1]   On October 5, 2018, Timothy Malott was involved in a deadly automobile

      collision. The driver of the other vehicle died after his vehicle was struck by

      Malott’s vehicle. Malott was subsequently charged with numerous offenses

      relating to the collision. Following trial, the trial court entered judgment

      against Malott for Level 4 felony operating while intoxicated (“OWI”) with a

      prior conviction causing death and Level 5 felony reckless homicide. The trial

      court sentenced Malott to an aggregate ten-year term of incarceration.

[2]   On appeal, Malott contends that (1) the trial court abused its discretion in

      admitting certain evidence, (2) the evidence is insufficient to prove that he was

      intoxicated at time of the collision, and (3) his convictions and sentences for

      both the Level 4 felony OWI offense and Level 5 felony reckless homicide

      violate Indiana’s prohibitions against double jeopardy. Upon review, we

      conclude that (1) the trial court did not abuse its discretion in admitting the

      challenged evidence, (2) the evidence is sufficient to prove that Malott was

      intoxicated at the time of the collision, and (3) Malott’s convictions and

      sentences for both the Level 4 felony OWI offense and Level 5 felony reckless

      homicide violate Indiana’s prohibitions against double jeopardy. As such, we

      affirm in part, reverse in part, and remand with instructions.



                            Facts and Procedural History



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 2 of 25
[3]   Around 2:45 p.m. on October 5, 2018, Malott’s sister drove him to a body shop

      in Michigan City to pick up his vehicle. Malott then ran a few other errands

      before ending up at the “Three Sheets Bar” at around 4:45 p.m., where he

      stayed for about fifteen to twenty minutes. Tr. Vol. V. p. 90. While at the bar,

      he consumed “two tall draft[]” beers. Tr. Vol. V p. 91.


[4]   At approximately 5:00 p.m., just prior to the collision, Malott was stopped at

      the intersection of Franklin Street and Barker Street near downtown Michigan

      City, headed southbound on Franklin Street in the left-hand lane. Vehicles

      driven by Andrea Garrett and David Johnson were stopped in the lane adjacent

      to Malott’s vehicle. When the light turned green, Garrett’s and Johnson’s

      vehicles began moving, but Malott’s did not. After a few moments, Malott

      revved his engine, “squealed his tires and, like, took off really fast and jetted

      past [Garrett].” Tr. Vol. II p. 242. Malott was driving “much faster” than both

      Garrett and Johnson, and neither Garrett nor Johnson noticed any other

      vehicle behind Malott also driving fast. Tr. Vol. II p. 243.


[5]   A few blocks to the south, Anthony Waters was stopped at the intersection of

      Franklin Street and Skwiat Legion Avenue. As Waters pulled out to make a

      left turn into the northbound lanes of Franklin Street, his vehicle was struck by

      Malott’s vehicle. Garrett described the collision, stating that Malott “crashed

      into him. He T-boned him.” Tr. Vol. II p. 242. Waters had to be extracted

      from his vehicle and died shortly thereafter from “multiple blunt force trauma”

      that was “the result of injuries from” the collision. Tr. Vol. III p. 217.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 3 of 25
[6]   Michigan City Police Captain Jeff Loniewski arrived on the scene within a

      minute or two of the crash. Captain Loniewski described the collision as “so

      violent that it actually pushed the entire driver’s compartment laterally,

      sideways over into the passenger compartment” making it appear as if “the

      driver was the passenger, the front seat passenger.” Tr. Vol. III p. 33. Captain

      Loniewski found Malott “seated in the driver’s seat” of his vehicle “with the

      door open.” Tr. Vol. III p. 21. Malott told Captain Loniewski that he “was

      traveling southbound on Franklin Street in the right hand lane and that he tried

      -- was attempting to pass a vehicle that was slower ahead of him, so he moved

      to the left lane and at that point [Waters] pulled out in front of him.” Tr. Vol.

      III p. 22. Captain Loniewski observed that Malott “was staring straight ahead

      when [he] asked him questions and even when he responded to [Captain

      Loniewski’s] questions, he continued staring straight ahead as if he was trying

      to avoid making eye contact” with Captain Loniewski. Tr. Vol. III p. 22.


[7]   Malott initially consented to submit to a chemical test, so Michigan City Police

      Lieutenant Greg Jesse transported him to the hospital. Lieutenant Jesse noticed

      a faint “sweet, almost chemical like smell” that Lieutenant Jesse recognized as

      smelling similar to some forms of alcohol when Malott was in his vehicle. Vol.

      III p. 173. Lieutenant Jesse also noticed that Malott slightly dragged one foot

      sometimes when walking. Once at the hospital, Malott refused to submit to a

      blood test without consulting with his attorney because he was being

      “railroaded.” Tr. Vol. III p. 178. Given Malott’s refusal to submit to the test,




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 4 of 25
       Lieutenant Jesse transported Malott to the police station and began the process

       of obtaining a search warrant.


[8]    The search warrant was issued at approximately 8:45 p.m., after which

       Michigan City Police Sergeant Jason Holaway took Malott back to the hospital

       for the administration of the test. Malott’s blood was drawn at 9:28 p.m.,

       approximately four hours and twenty minutes after the collision. The test

       results subsequently showed that Malott’s blood alcohol content (“BAC”) was

       .108 plus or minus .008 grams per 100 milliliters.

[9]    It was subsequently determined that at the time of the collision, Malott was

       traveling approximately sixty-eight miles per hour, well above the posted thirty-

       miles-per-hour speed limit. The subsequent examination of the black box from

       Malott’s vehicle showed that his accelerator pedal was still at 100% activation

       four seconds before impact and did not reach 0% activation until 1.5 seconds

       before impact. His vehicle’s speed continued to increase until two seconds

       before impact, when he was traveling at 74.6 miles per hour. A half-second

       before impact, Malott was still traveling at 72.7 miles per hour, and at the

       moment of impact he was traveling at 68.3 miles per hour. There was no

       activation of the brakes until within a half-second before impact.


[10]   On October 9, 2018, the State charged Malott with Count I – Level 5 felony

       operating a vehicle with a BAC of .08 or greater causing death, Count II –

       Level 5 felony OWI causing death, Count III – Level 4 felony operating a

       vehicle with a BAC of .08 or greater with a prior conviction causing death, and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 5 of 25
       Count IV – Level 4 felony OWI with a prior conviction causing death. On

       February 11, 2019, the State amended the charging information to add Count V

       – Level 5 felony reckless homicide. A jury trial was held on August 13–16,

       2019, at the conclusion of which the jury found Malott guilty of Counts I, II,

       and V. Malott subsequently pled guilty to Counts III and IV. On October 17,

       2019, the trial court entered judgment of conviction on Count IV and Count V.


[11]   In sentencing Malott, the trial court stated as follows:


               At trial, the Defendant concocted a story about being involved in
               a road rage incident as the reason for his excessive speed on the
               most traveled street in Michigan City; especially on an early
               Friday evening. Had such an incident actually occurred, surely
               the Defendant would have mentioned same to the investigating
               police officers at the scene of the collision or at some point later
               in the course of the investigation. However, the Defendant never
               mentioned this critical piece of information at all during the
               course of his multiple opportunities to do so while his blood work
               was being taken and analyzed.

               The most compelling evidence is that the Defendant was
               intoxicated at the time of the accident; that he was driving at
               excessive speed and that each of said factors individually and/or
               in combination with the other caused the collision that resulted
               in the death of Anthony Waters.


       Appellant’s App. Vol. III p. 118. The trial court merged the convictions for

       Counts I through III with Count IV and imposed a ten-year term of

       imprisonment. The trial court also imposed a five-year term of imprisonment

       for the reckless homicide conviction. The trial court ordered that the sentences

       “shall be served concurrently,” recommended placement in “the Recovery

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 6 of 25
       While Incarcerated Program,” and indicated that Malott “shall be entitled to

       file a Petition to Modify after having completed said program and after serving

       at least 5 actual years of said sentence.” Appellant’s App. Vol. III p. 120.



                                 Discussion and Decision
[12]   Malott challenges his conviction for Level 4 felony OWI with a prior conviction

       causing death, claiming that the trial court abused its discretion in admitting

       certain evidence and that the evidence is insufficient to sustain his conviction.

       Malott also contends that his convictions and sentences for both the Level 4

       felony OWI offense and Level 5 reckless homicide violate the prohibitions

       against double jeopardy.


                                   I. Admission of Evidence
[13]   Malott contends that the trial court abused its discretion in admitting certain

       evidence at trial.

               The admission or exclusion of evidence is entrusted to the
               discretion of the trial court. We will reverse a trial court’s
               decision only for an abuse of discretion. We will consider the
               conflicting evidence most favorable to the trial court’s ruling and
               any uncontested evidence favorable to the defendant. An abuse
               of discretion occurs when the trial court’s decision is clearly
               against the logic and effect of the facts and circumstances before
               the court or it misinterprets the law.


       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (internal citations

       omitted). “Moreover, the trial court’s ruling will be upheld if it is sustainable

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 7 of 25
       on any legal theory supported by the record, even if the trial court did not use

       that theory.” Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing

       Gonser v. State, 843 N.E.2d 947, 950 (Ind. Ct. App. 2006)).


[14]   Indiana Evidence Rule 702(a) provides that “[a] witness who is qualified as an

       expert by knowledge, skill, experience, training, or education may testify in the

       form of an opinion or otherwise if the expert’s scientific, technical, or other

       specialized knowledge will help the trier of fact to understand the evidence or to

       determine a fact in issue.” Dr. Shelia Arnold, the Forensic Toxicologist and

       Quality Control Coordinator for the Indiana State Department of Toxicology,

       testified at Malott’s trial regarding the results from the blood test taken

       approximately four hours and twenty minutes after the collision and gave an

       opinion as to what range Malott’s BAC would have been in at the time of the

       collision. Malott does not dispute that Dr. Arnold was qualified as an expert

       and did not object to Dr. Arnold’s testimony regarding the results of the blood

       test. Malott, however, challenges the admission of Dr. Arnold’s testimony

       regarding her opinion of what range Malott’s BAC would have been in at the

       time of the collision.

[15]   Dr. Arnold testified that she could estimate a range for Malott’s BAC at the

       time of the collision using the theory of retrograde extrapolation. The trial

       court allowed this testimony over Malott’s objection. In challenging the

       admission of Dr. Arnold’s testimony, Malott argues as follows:


               Dr. Arnold’s testimony regarding the retrograde range, because
               of its lack of reliability, does not help the jury but, instead,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 8 of 25
               exposed the jury to information that had the potential of being
               unfairly prejudicial and confusing. Dr. Arnold was allowed to
               opine that Malott’s BAC was between .151 and .216 despite
               conceding that she could not definitively say what his actual
               BAC level was and could further not say he was not below a .08
               at the time of the accident. She could not say he was not in the
               absorption phase.


       Appellant’s Br. p. 25. For its part, the State argues that “[r]etrograde

       extrapolation evidence has long been deemed admissible; in fact, whenever the

       State is operating outside the statutory presumption window, the State must

       present retrograde extrapolation evidence to prove a charged” offense.

       Appellee’s Br. p. 20. We agree with the State.


[16]   Indiana Code section 9-30-6-15(b) provides that if a chemical test is

       administered within three hours of when the individual is suspected to have

       driven under the influence, the results, if showing the individual to have a BAC

       of .08 or above, create a rebuttable presumption that the individual was driving

       with a BAC of .08 or above. “The only effect of the failure to perform the test

       within the statutory timeframe is that the State is deprived of the rebuttable

       presumption provided in Section 15(b).” State v. Stamm, 616 N.E.2d 377, 380

       (Ind. Ct. App. 1993). “[T]he delay is relevant only to the rebuttable

       presumption, not the admissibility of the chemical test.” Id. Thus, if the test

       was taken more than three hours after the person is suspected to have driven

       under the influence, the State may not rely solely on the test results but must

       provide extrapolation evidence relating the driver’s BAC to the time of the

       incident. See Mannix v. State, 54 N.E.3d 1002, 1009 (Ind. Ct. App. 2016)

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 9 of 25
       (providing that because Mannix’s blood was drawn more than three hours after

       the accident, the State was deprived of the rebuttable presumption in Section 9-

       30-6-15(b) and therefore must have provided extrapolation evidence relating

       Mannix’s BAC at the time of the test back to the time of the accident); Stamm,

       616 N.E.2d at 380 (providing that test results taken more than three hours after

       an individual is alleged to having driven under the influence may be used to

       determine the precise BAC of the defendant at the time of the accident if the

       State produces additional evidence of such BAC by means of extrapolation).


[17]   Malott asserts that Dr. Arnold’s opinion testimony as to the potential range of

       his BAC at the time of the collision should have been excluded because the

       potential probative value of the opinion was substantially outweighed by the

       danger of unfair prejudice and confusion of the issues. See Ind. Evid. Rule 403

       (“The court may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of one or more of the following: unfair prejudice,

       confusing the issues, misleading the jury, undue delay, or needlessly presenting

       cumulative evidence.”). In arguing that he was prejudiced by the admission of

       the challenged evidence, Malott asserts as follows:

               No amount of cross-examination can erase these numbers from a
               jury’s mind when coming from an individual identified as having
               a high level of expertise in the field. The expectation that a jury
               filled with lay persons would discount Dr. Arnold’s opinion, on
               an issue as complex and detailed as retrograde extrapolation, is
               simply too far farfetched no matter how effective the cross-
               examination may have been. Dr. Arnold’s opinion on the
               extrapolation issue substantially prejudiced Malott’s ability for a
               fair trial.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 10 of 25
       Appellant’s Br. p. 23. For its part, the State asserts that Malott’s arguments “go

       only to the weight of the evidence, not to its admissibility, and they do not

       show that the probative value of the testimony was substantially outweighed by

       the danger of unfair prejudice.” Appellee’s Br. p. 22. Again, we agree with the

       State.


[18]   In testifying about how retrograde extrapolation works and its limitations, Dr.

       Arnold acknowledged that there are several factors that can affect absorption

       and elimination rates and that people will absorb and eliminate alcohol at

       different rates. She testified that the general consensus is that on average, a

       person’s body absorbs alcohol for “somewhere between 30 minutes and an

       hour” after their last drink. Tr. Vol. IV p. 84. However, “looking backwards,

       there’s no way” for her to precisely identify Malott’s alcohol absorption rate.

       Tr. Vol. IV p. 84. She further testified that she relies on ranges in completing

       retrograde extrapolation analysis because she’s “not going to assume

       somebody’s average … science shows that you can be lower or you can be

       higher. So I’m going to always present that as possibilities, because it is a

       possibility.” Tr. Vol. IV p. 87. Dr. Arnold further acknowledged that not

       everyone agrees that retrograde extrapolation is “a good type of methodology to

       be used in criminal prosecutions,” especially when “people use averages and

       assume someone is that average as opposed to taking the low and high range of

       what has been reported in the literature the way that I approach it.” Tr. Vol. IV

       p. 131. The State accurately states that “[t]he jury was fully apprised of the

       factors that may influence these rates and of the information that was unknown


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 11 of 25
       to Dr. Arnold and thus prevented her from calculating a definitive BAC at the

       time of the crash.” Appellee’s Br. p. 23. As such, we agree with the State that

       “[i]t was for the jury to decide, given this information, how much weight to

       place on the fact that Defendant had a .108 BAC a little over four hours after

       the crash and how much weight to place on Dr. Arnold’s expert opinion

       regarding Defendant’s likely BAC at the time of the crash.” Appellee’s Br. p.

       23. The trial court, therefore, did not abuse its discretion in admitting the

       challenged evidence.


                                II. Sufficiency of the Evidence1
[19]   Malott also contends that the evidence is insufficient to sustain his conviction

       for Level 4 felony OWI with a prior conviction causing death. Our standard of

       review for challenges to the sufficiency of the evidence is well-settled. Bell v.

       State, 31 N.E.3d 495, 499 (Ind. 2015). “We do not reweigh the evidence or

       assess the credibility of witnesses in reviewing a sufficiency of the evidence

       claim.” Id. Conflicting evidence is considered “in the light most favorable to

       the trial court’s finding.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). This is

       because the factfinder, and not the appellate court, “is obliged to determine not

       only whom to believe, but also what portions of conflicting testimony to




       1
         The State argues that Malott waived his challenge to the sufficiency of the evidence by pleading guilty.
       However, review of the record reveals that while Malott did plead guilty to the enhancement of his OWI
       conviction from a Level 5 felony to a Level 4 felony due to a prior OWI conviction, Malott only stipulated
       that he had been convicted of an unrelated OWI offense within five years of committing the instant OWI
       offense and explicitly retained his right to challenge the sufficiency of the evidence of the underlying OWI
       charge.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020                     Page 12 of 25
       believe, and is not required to believe a witness’s testimony even when it is

       uncontradicted.” Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (internal

       quotation and brackets omitted). On appeal, we “look to the evidence and

       reasonable inferences drawn therefrom that support the verdict and will affirm

       the conviction if there is probative evidence from which a reasonable fact-finder

       could have found the defendant guilty beyond a reasonable doubt.” Bell, 31

       N.E.3d at 499.


[20]   At the time of the collision, Indiana Code section 9-30-5-5(a)(3) provided that a

       person who caused the death of another person when operating a vehicle while

       intoxicated committed a Level 5 felony. However, “a person who cause[d] the

       death of another person when operating a vehicle … commit[ed] a Level 4

       felony if: (1) the person operating the vehicle ha[d] a previous conviction of

       operating while intoxicated within the ten (10) years preceding the commission

       of the offense[.]” Ind. Code § 9-30-5-5(b)(1). It is undisputed that Waters was

       killed in the collision with Malott and that Malott had a prior OWI conviction

       within the five years preceding the collision. In challenging his conviction,

       Malott argues only that the evidence is insufficient to prove that he was

       intoxicated at the time of the collision.


[21]   “‘Intoxicated’ means under the influence of: (1) alcohol … so that there is an

       impaired condition of thought and action and the loss of normal control of a

       person’s faculties.” Ind. Code § 9-13-2-86. “[P]roof of intoxication may be

       established by showing impairment, and … does not require proof of a [BAC]

       level.” Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999). “Evidence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 13 of 25
       of the following can establish impairment: (1) the consumption of significant

       amounts of alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot

       eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6) failure of

       field sobriety tests; (7) slurred speech.” Id. However, a person need not exhibit

       signs of both physical and cognitive impairment as impairment of either creates

       a considerable danger to others. See Curtis v. State, 937 N.E.2d 868, 873 (Ind.

       Ct. App. 2010) (providing that a person who displays signs of cognitive

       impairment but control of his physical movements is as much of a danger as a

       person who is unable to control his physical movements but has cognitive

       lucidity). “It is perhaps for this reason that our courts have consistently” held

       that impairment need not be proven by element-by-element fashion but rather

       can be “established by evidence of certain behaviors and traits evincing

       impairment, irrespective of whether that evidence established particularized

       impairment of action, and impairment of thought, and loss of control of

       faculties.” Id. “Circumstantial evidence is sufficient to prove that the

       defendant operated the vehicle while intoxicated.” Jellison v. State, 656 N.E.2d

       532, 535 (Ind. Ct. App. 1995).


[22]   At trial, Malott admitted that he arrived at the “Three Sheets Bar” at around

       4:45 p.m. and stayed for about fifteen to twenty minutes. Tr. Vol. V. p. 90. He

       further admitted that while at the bar, he consumed “two tall draft[]” beers. Tr.

       Vol. V p. 91. A reasonable person could infer that drinking two tall draft beers

       in such a short time span could impair one’s mental faculties. See generally

       Jellison, 656 N.E.2d at 535 (providing that evidence that the defendant had


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 14 of 25
       consumed alcohol in the hours preceding a traffic accident could support an

       inference of impairment).


[23]   In addition to Malott’s own testimony, the State’s evidence regarding Malott’s

       alcohol consumption supports the inference that Malott was impaired at the

       time of the collision. Malott avoided direct eye contact and turned his head to

       avoid speaking directly at investigating officers. He also provided differing

       explanations for his actions immediately preceding the collision. Further, while

       Malott’s BAC at the time of the collision is unknown, four hours and twenty

       minutes after the collision, his BAC was .108. Although the test was conducted

       more than three hours after the collision, the results, which show that Malott

       had alcohol in his system, are admissible to support the OWI charge. See

       Stamm, 616 N.E.2d at 380. This is especially true given that there is nothing in

       the record that would suggest that Malott consumed any alcohol in the time

       that passed between the time of the collision and testing, supporting the

       inference that all alcohol in his system at the time of testing was present in his

       system at the time of the collision. In addition, Dr. Arnold testified that for

       Malott’s BAC to be .108 four hours and twenty minutes after the collision, he

       would have had to have consumed at least “between 6.1 and 9 standard

       drinks,” depending on the rate at which his body absorbed alcohol. Tr. Vol. IV

       p. 117. Dr. Arnold also testified that impairment generally begins when a BAC

       is .04 or .05. A reasonable person could infer from the State’s evidence

       regarding Malott’s alcohol consumption that Malott was intoxicated at the time

       of the collision.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 15 of 25
[24]   In challenging the sufficiency of the evidence to prove intoxication, Malott

       essentially requests that we disregard the BAC evidence and Dr. Arnold’s

       testimony and instead credit his self-serving testimony that he was not

       intoxicated. Malott’s challenge to the sufficiency of the evidence amounts to

       nothing more than an invitation to reweigh the evidence and reassess witness

       credibility, which we will not do. Bell, 31 N.E.3d at 499. Furthermore, while

       we acknowledge that evidence of erratic or reckless driving can, under some

       circumstances, be a sign of intoxication, see Boyd v. State, 519 N.E.2d 182, 184

       (Ind. Ct. App. 1988) and Hughes v. State, 481 N.E.2d 135, 137 (Ind. Ct. App.

       1985) (providing that the factfinders could infer impairment from the

       defendants’ acts of driving well above the posted speed limit at night and dusk,

       respectively, especially when coupled with other visible signs of the defendants’

       intoxication), in this case, we conclude that the jury was provided with

       sufficient evidence unrelated to Malott’s driving from which it could find that

       Malott was intoxicated.


                                       III. Double Jeopardy
[25]   Finally, Malott claims, and the State concedes, that because the collision

       resulted in the death of only one person, prohibitions against double jeopardy

       prohibit Malott from being punished for both Level 5 felony reckless homicide

       and Level 4 felony OWI with a prior conviction causing death. Malott argues

       that we should eliminate the double jeopardy violation by reducing “the OWI

       death conviction, as a level 4 Felony, to an OWI with a prior conviction … as a



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 16 of 25
       Level 6 Felony.” Appellant’s Br. p. 21. For its part, the State argues that we

       should eliminate the violation by vacating the reckless homicide conviction.


         A. Overview of Cases Discussing OWI Causing Death and
                           Reckless Homicide
                                  1. Carter, Drossos, and Marshall

[26]   In Carter v. State, 424 N.E.2d 1047 (Ind. Ct. App. 1981), Carter was convicted of

       both OWI causing death and reckless homicide. The evidence at trial

       established that Carter was intoxicated at the time of the incident and “[t]hat

       coupled with the apparent speed and manner in which the vehicle swerved off

       both sides of the road prior to striking the tree would support the inference of

       recklessness.” Carter, 424 N.E.2d at 1048. On appeal, we concluded that

       Carter could not be convicted of both OWI causing death and reckless

       homicide. Id. In explaining our conclusion, we stated the following:


               There was here but one homicide, and that was the gravamen of
               the offense. It matters no more that Carter was both intoxicated
               and driving recklessly in causing his passenger’s death than it
               would have had Carter poisoned him, stabbed him and thrown
               him from a high bridge. The means of committing an offense
               may not be utilized to multiply the number of offenses
               committed. Only one homicide was committed and only one
               sentence may be imposed.

               The case is therefore remanded to the trial court with instructions
               to vacate one of the sentences.


       Id. (internal citations omitted).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 17 of 25
[27]   We reached the same conclusion in Drossos v. State, 442 N.E.2d 1 (Ind. Ct. App.

       1982). In that case, Drossos was involved in an accident in which four people

       were killed. Drossos, 442 N.E.2d at 2. Evidence established that at the time of

       the accident, Drossos was both driving recklessly and intoxicated. Id. at 2–3.

       Just prior to the accident, Drossos had been tailgating another vehicle and

       driving aggressively, and he was traveling at a rate of speed above the posted

       speed limit when he collided with the other vehicle. Id. at 2. Officers

       administered a breathalizer test, which subsequently revealed that, at the time

       of the collision, Drossos’s BAC was .17. Id. at 3. Drossos was charged in

       relation to the death of the other driver and two of the other driver’s passengers,

       with one count of reckless homicide and one count of OWI causing death for

       each individual. Id. He was subsequently convicted of all six charges. Id.


[28]   On appeal, we noted that Drossos was convicted twice for killing each victim.

       Id. at 6. Citing to Carter, we concluded that “[i]n a case such as this, there was

       but one homicide of each victim and evidence can support but one conviction.”

       Id. We affirmed Drossos’s convictions for OWI causing death and remanded

       the matter to the trial court with instructions to vacate the three reckless

       homicide convictions. Id. at 6–7.


[29]   We also reached the same conclusion in Marshall v. State, 563 N.E.2d 1341 (Ind.

       Ct. App. 1990). In this case, Marshall lost control of his vehicle while driving,

       killing six passengers. Marshall, 563 N.E.2d at 1342. At the time of the

       accident, Marshall’s BAC was .12. Id. Marshall was charged with and



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 18 of 25
       convicted of both operating a vehicle with a BAC of .10 causing death and

       reckless homicide. On appeal, we concluded as follows:


               Marshall cannot be convicted of operating a motor vehicle with a
               BAC of .10% or more resulting in death and reckless homicide
               for the death of a single individual. Therefore, the trial court
               erred in failing to vacate either Marshall’s conviction and
               sentence for the operating offense or the reckless homicide
               offense based upon the death of the same individual.


       Id. at 1343. We “remanded with instructions to the trial court to vacate the

       conviction and sentence for either operating a vehicle with a BAC of .10% or

       more resulting in death or the conviction and sentence for reckless homicide

       arising from the death of the same individual.” Id. at 1344.


                                                  2. Dawson

[30]   In Dawson v. State, 612 N.E.2d 580 (Ind. Ct. App. 1993), an individual was

       killed after being struck by Dawson’s motorcycle. After a night of drinking,

       Dawson arrived at a party at about 2:00 a.m. and decided to entertain or

       impress his fellow partygoers by riding his motorcycle in a “wheelie” in front of

       them. Dawson, 612 N.E.2d at 582. Tragically, one of Dawson’s friends died

       after being struck by Dawson’s motorcycle as the friend “happened to walk or

       run” into the street. Id.


[31]   On appeal, we concluded that Dawson could not be punished for both OWI

       causing death and reckless homicide. However, in reaching this conclusion we

       stated that unlike in Carter and Drossos, “[w]e are not convinced Dawson’s OWI


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 19 of 25
death and reckless homicide offenses are the same for double jeopardy

purposes.” Dawson, 612 N.E.2d at 585. We explained as follows:


        Unlike in Carter and Drossos, the State’s legal theory supporting
        its allegation of reckless homicide against Dawson did not entail
        proof of intoxication. To the contrary, to establish Dawson’s
        recklessness the State need have established only that Dawson
        did a wheelie on his motorcycle, since a wheelie by its very
        nature is a reckless act. This the State did. Because the offense
        of reckless homicide was premised on Dawson’s wheelie, and not
        on his intoxication, and the offense of OWI death was premised
        on Dawson’s intoxication, and not on the fact that he did a
        wheelie, the two offenses are not the same for double jeopardy
        purposes and double jeopardy is not offended by punishing
        Dawson for each.


Id. (footnote omitted). We concluded, however, that “[a]lthough double

jeopardy does not forbid Dawson from being punished for both OWI death and

reckless homicide under these facts (i.e., when recklessness is not predicated

upon intoxication), we hold Indiana law does impose such a prohibition.” Id.

We remanded the case to the trial court with instructions to vacate Dawson’s

OWI causing death conviction, enter the lesser-included OWI conviction, and

to sentence Dawson accordingly. Id. at 586. Specifically, we stated the

following:


        Because double jeopardy prohibits multiple punishments for the
        same offense, and because Carter and Drossos were decided on
        double jeopardy grounds, the Carter and Drossos courts were
        compelled to vacate at least one of the sentences and/or
        convictions in question. Dawson’s case, on the other hand,
        raised no constitutional double jeopardy prohibitions;

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 20 of 25
               accordingly, double jeopardy does not require that we vacate one
               of his convictions and/or sentences. Indiana case law requires
               only that Dawson not be punished for both OWI death and
               reckless homicide convictions arising from the same accidental
               death; it does not forbid Dawson from being punished for, say,
               reckless homicide and operating a vehicle while intoxicated
               (OWI), a lesser-included offense of OWI death.

               In fact, we find that substituting OWI for OWI death is a
               satisfactory outcome here.… Because OWI is a lesser-included
               offense of OWI death, it is plain Dawson was guilty of OWI and
               was put on notice that he could be punished for it.


       Id. at 585–86.


                                       B. The Instant Matter
[32]   Malott argues that like in Dawson, the convictions were based on distinct facts.

       Specifically, he claims that the Level 5 felony reckless homicide charge was

       premised on his reckless behavior and not on his intoxication, and the Level 4

       felony OWI with a prior conviction causing death charge was premised on his

       intoxication and not on the fact that he drove recklessly. We cannot agree.


[33]   In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana Supreme Court

       concluded that “two or more offenses are the same offense in violation of article

       1, section 14 if, with respect to either the statutory elements of the challenged

       crimes or the actual evidence used to obtain convictions, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 21 of 25
               Under the actual evidence test, we examine the actual evidence
               presented at trial in order to determine whether each challenged
               offense was established by separate and distinct facts. To find a
               double jeopardy violation under this test, we must conclude that
               there is 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.… Our precedents instruct that a
               reasonable possibility that the jury used the same facts to reach
               two convictions requires substantially more than a logical
               possibility.


       Id. at 719 (internal quotations and citations omitted). “The existence of a

       reasonable possibility turns on a practical assessment of whether the [fact

       finder] may have latched on to exactly the same facts for both convictions.” Id.

       at 720 (brackets in original). “We evaluate the evidence from the jury’s

       perspective and may consider the charging information, jury instructions, and

       arguments of counsel.” Id.


[34]   While the charging information for the reckless homicide charge does not

       mention intoxication, like in Carter, Drossos and Marshall, the collision occurred

       while Malott was operating a vehicle for normal travel on a public roadway.

       Just prior to the collision, Malott was stopped at the intersection of Franklin

       Street and Barker Street near downtown Michigan City, headed southbound on

       Franklin Street in the left-hand lane. Two other vehicles driven by Garrett and

       Johnson were stopped in the lane adjacent to Malott’s vehicle. When the light

       turned green, Garrett’s and Johnson’s vehicles began moving, but Malott’s did

       not. After a few moments, Malott revved his engine. Malott then “squealed his


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 22 of 25
       tires and, like, took off really fast and jetted past [Garrett] and um, crashed into

       a car that was coming, turning onto Franklin. He crashed into him. He T-

       boned him.” Tr. Vol. II p. 242. Although Malott attempted to justify his

       actions by claiming that another vehicle had tapped his bumper while he was

       stopped at the traffic light and aggressively followed him at a high rate of speed

       once the light turned green, neither Garrett nor Johnson observed another

       vehicle following close to Malott at a high rate of speed. At the time of the

       collision, Malott was traveling approximately sixty-seven miles per hour, well

       above the posted thirty-miles-per-hour speed limit. While Malott’s BAC at the

       time of the collision is unknown, approximately four-and-one-half hours after

       the collision, his BAC was .108 plus or minus .008 grams per 100 milliliters.


[35]   Furthermore, in its closing argument to the jury, the State argued that Malott’s

       impairment was a cause of his reckless driving. Specifically, the State asserted:


               What’s … impairment? Lack of inhibitions, poor judgment, slow
               reactions, no reactions, buzzed driving is drunk driving. We’ve
               heard that slogan. You’re not as quick when you’ve got six
               drinks on—board. You’re different. You don’t have inhibitions.
               You don’t have good judgment. You might decide, assuming
               someone honks their horn and flips you off, you need to go 75
               miles per hour down Franklin Street while looking in the
               rearview mirror, despite the fact that there’s traffic and a bunch
               of people in front of you. That’s impaired judgment. You might
               be driving 75 miles per hour mostly looking in your rearview
               mirror, if it’s true, because you’re not putting together the fact
               that you really ought to be paying attention where you’re going
               in case somebody’s in the road. You might, despite the fact that
               somebody’s in the road, not notice them or not react and even
               though you’re 100 yards away or more, well, if you were sober,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 23 of 25
               you probably would have been paying attention, you probably
               would have done something about it, and you wouldn’t have
               been going 75 miles per hour in the first place.… Do we have
               terrible judgment, impaired judgment, unjustifiable judgment?
               Do we have lack of inhibitions? Do we have lack of reaction?
               We do. This seems like an okay idea, this seems like an
               appropriate response. I don’t just drive 35 to 40 miles an hour in
               a way and go to the police or use my cell phone, because my
               thinking is impaired, my judgment is impaired, and this seems
               like a perfectly acceptable thing to do, 75 miles an hour down
               Franklin. I am exaggerating, it was 74.7 miles per hour. I
               rounded up. Would a sober person with normal faculties make
               those decisions and drive like that? Well, if they were being
               reckless, what’s the probable reason that those reckless decisions
               seemed okay? Impairment.


       Tr. Vol. V. pp. 130–31.

[36]   Considering the charging information, the evidence relating to the collision,

       and the State’s arguments to the jury, we conclude that the jury could have

       reasonably inferred that Malott’s reckless driving was caused by impairment.

       The evidence supports an inference that Malott exhibited poor reflexes and

       judgment, driving in a manner that caused him to collide with Waters’s vehicle.

       As such, we conclude that the facts of the instant matter are more akin to those

       in Carter, Drossos and Marshall than in Dawson. In each of those cases, we

       remanded the matter with instructions to vacate either the convictions for OWI

       causing death or reckless homicide. Following the precedent set forth in each

       of these case, we conclude that the appropriate way to remedy the double

       jeopardy violation here is to vacate one of Malott’s convictions.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 24 of 25
[37]   “[W]hen we determine that two convictions contravene double jeopardy

       principles, we may eliminate the violation by vacating either conviction, and we

       consider the penal consequences that the trial court found appropriate.” Owens

       v. State, 742 N.E.2d 538, 545 (Ind. Ct. App. 2001). In this case, the trial court

       considered the appropriate penal consequences and sentenced Malott to an

       aggregate ten-year term of imprisonment. Taking the penal consequences

       imposed by the trial court into account, we vacate the Level 5 felony reckless

       homicide conviction because it has less severe penal consequences, and we

       leave standing the Level 4 felony OWI conviction. See Jenkins v. State, 726

       N.E.2d 268, 271 (Ind. 2000) (vacating the robbery conviction because it has less

       severe penal consequences than the remaining felony murder conviction);

       Owens, 742 N.E.2d at 545 (vacating the defendant’s battery conviction because

       it had less severe penal consequences that the remaining attempted robbery

       conviction). On remand, we instruct the trial court to vacate Malott’s

       conviction for Level 5 felony reckless homicide.


[38]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2620 | May 19, 2020   Page 25 of 25
