                                                                             Oct 30 2015, 9:33 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Paula M. Sauer                                            Gregory F. Zoeller
Danville, Indiana                                         Attorney General of Indiana

                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brooks Berg,                                              October 30, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          32A01-1504-CR-127
        v.                                                Appeal from the Hendricks
                                                          Superior Court
State of Indiana,                                         The Honorable Mark A. Smith,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          32D04-1406-FD-534



Najam, Judge.




Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015               Page 1 of 9
                                           Statement of the Case
[1]   Brooks Berg appeals his convictions for operating while intoxicated, as a Class

      D felony, and reckless driving, as a Class B misdemeanor.1 Berg raises a single

      issue for our review, namely, whether the State violated his double jeopardy

      rights under Richardson v. State, 717 N.E.2d 32 (Ind. 1999), when it used the

      evidence it had presented to the jury to support the reckless-driving charge to

      demonstrate the endangerment element of the operating-while-intoxicated

      charge. The State concedes on appeal that this use of the evidence resulted in a

      violation of Berg’s rights under the Richardson actual evidence test.


[2]   We reject Berg’s argument and the State’s concession, and we hold that the trial

      court did not violate Berg’s double jeopardy rights when it entered its judgment

      of conviction against him for both operating while intoxicated, as a Class D

      felony, and reckless driving, as a Class B misdemeanor. Thus, we affirm Berg’s

      convictions.


                                     Facts and Procedural History
[3]   In the early morning hours of June 21, 2014, Plainfield Police Department

      Sergeant Mike Mason observed a vehicle—later determined to have been

      operated by Berg—traveling at fifty-nine miles per hour in a forty-five miles per

      hour zone. Sergeant Mason initiated a traffic stop, and Berg decelerated and

      pulled the vehicle into a parking lot. But, as Sergeant Mason pulled up behind



      1
          Berg does not appeal his conviction for resisting law enforcement, as a Class D felony.


      Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015                    Page 2 of 9
      him, Berg “accelerate[d] hard” and returned to the main road, fleeing from

      Sergeant Mason. Tr. at 301.


[4]   Two other officers joined the chase. Berg accelerated to 130 miles per hour, but

      when he turned onto a “very bumpy county road” he decelerated to between

      eighty and ninety miles per hour. Id. at 307. Conditions became “extremely

      thick” with fog, it was “extremely hard to see” if anyone else might have been

      on the roads, and Berg was “bouncing all over the roads,” “going from the left

      side of the road to the right side of the road, speeding up [and] slowing down.”

      Id. at 308-09. Eventually, Berg attempted to navigate a right turn but lost

      control of the vehicle. Berg “crosse[d] the oncoming traffic,” went “down into

      [a] ditch . . . on the left side of the road[,] c[a]me[] back up the other side of the

      ditch[,] hit[] a very large tree[,] and then launche[d]” the vehicle such that it

      became “inverted and land[ed] in the middle of the road . . . .” Id. at 309-10.

      Officers then arrested Berg. A friend of Berg’s, Coty Bedwell, was in the

      vehicle’s passenger seat. Neither occupant was seriously injured.


[5]   On June 23, the State charged Berg with numerous offenses. It later amended

      its charges to allege, in relevant part, as follows: resisting law enforcement, as a

      Class D felony based on Berg’s use of a vehicle to commit the offense; operating

      while intoxicated, as a Class D felony on the basis of a previous conviction for

      operating while intoxicated; and reckless driving, as a Class B misdemeanor,

      based specifically on Berg operating the vehicle at such an unreasonably high

      rate of speed that he endangered another. The State also alleged Berg to be a



      Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015    Page 3 of 9
      habitual substance offender. Following a multi-phase jury trial, the jury found

      Berg guilty on all counts and found him to be a habitual substance offender.


[6]   Following the jury’s verdict, the trial court entered its judgment of conviction

      against Berg for resisting law enforcement, as a Class D felony; operating while

      intoxicated, as a Class D felony;2 and reckless driving, as a Class B

      misdemeanor. The court also adjudicated Berg to be a habitual substance

      offender. The court “vacated” the jury’s remaining findings against Berg.

      Appellant’s App. at 206. The court then ordered Berg to serve an aggregate

      term of eight years in the Department of Correction. This appeal ensued.


                                         Discussion and Decision
[7]   On appeal, Berg asserts that the trial court violated his right under Article 1,

      Section 14 of the Indiana Constitution to be free from double jeopardy when

      the court entered its judgment of conviction against him both on the jury’s

      verdict that he had operated a vehicle while intoxicated and on its verdict that

      he had committed reckless driving. We review alleged double jeopardy

      violations de novo. Ellis v. State, 29 N.E.3d 792, 797 (Ind. Ct. App. 2015), trans.

      denied.




      2
          Berg’s abstract of judgment erroneously states that this conviction was entered as a Level 6 felony.


      Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015                            Page 4 of 9
[8]   Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,

      providing that “[n]o person shall be put in jeopardy twice for the same offense.”

      As the Indiana Supreme Court has explained:


              In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this 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. 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. Id. at 53. 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.” Id. The actual evidence test is applied to all the
              elements of both offenses. “In other words . . . the Indiana Double
              Jeopardy Clause is not violated when the evidentiary facts establishing
              the essential elements of one offense also establish only one or even
              several, but not all, of the essential elements of a second offense.” Spivey
              v. State, 761 N.E.2d 831, 833 (Ind. 2002).

              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.” Lee v. State, 892
              N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
              possibility standard “fairly implements the protections of the
              Indiana Double Jeopardy Clause and also permits convictions for
              multiple offenses committed in a protracted criminal episode
              when the case is prosecuted in a manner that insures that
              multiple guilty verdicts are not based on the same evidentiary
              facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a

      Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015         Page 5 of 9
              “‘reasonable possibility’ turns on a practical assessment of whether the
              [fact finder] may have latched on to exactly the same facts for both
              convictions.” Lee, 892 N.E.2d at 1236. We evaluate the evidence
              from the jury’s perspective and may consider the charging
              information, jury instructions, and arguments of counsel. Id. at
              1234.


      Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (emphases added; last

      alteration original).3 Thus, under Spivey, in order for there to be a double

      jeopardy violation under the actual-evidence test the evidentiary footprint for all

      the elements required to prove one offense must be the same evidentiary

      footprint as that required to prove all the elements of another offense. See 761

      N.E.2d at 833.


[9]   Here, according to the State’s charging information, which tracked the relevant

      statutes at issue, Berg committed operating while intoxicated, enhanced to a

      Class A misdemeanor, when he “did operate a vehicle while intoxicated in a

      manner that did endanger a person.” Appellant’s App. at 13; see Ind. Code § 9-

      30-5-2(b) (2014). The State alleged that that offense should be further enhanced

      to a Class D felony because Berg “had a previous conviction of operating while

      intoxicated that occurred within the 5 years immediately preceding” the instant

      offense. Appellant’s App. at 19; see I.C. § 9-30-5-3(a)(1). And the State alleged

      that Berg had committed reckless driving, as a Class B misdemeanor, when he

      “did operate a vehicle and did recklessly[] drive at such an unreasonably high



      3
        Berg does not challenge the validity of his convictions under either the Fifth Amendment to the United
      States Constitution or under the statutory elements test of the Indiana Constitution.

      Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015                       Page 6 of 9
       rate of speed under the circumstances as to endanger the safety or property of

       others.” Appellant’s App. at 15; see I.C. § 9-21-8-52(a)(1).


[10]   According to Berg, the State presented the same evidence of unsafe driving to

       establish both “the endangerment element for . . . operating while intoxicated”

       and the offense of reckless driving. Appellant’s Br. at 6. In its brief on appeal,

       the State concedes that “the facts that constituted the entire offense of reckless

       driving . . . is the same evidence that the State relied upon in proving that

       [Berg’s] operation of the vehicle while intoxicated endangered others.”

       Appellee’s Br. at 9; see Tr. at 512. The State then agrees that this case “should

       be remanded.” Id. (emphasis removed).


[11]   Both Berg’s argument on appeal and the State’s concession are premised on a

       misunderstanding of Richardson. The Richardson test cannot be met where, as

       here, one offense required evidence of intoxication and the other offense did

       not. Applying the actual evidence test “to all the elements of both offenses,” at

       least part of the evidentiary basis for the State’s charge that Berg had operated a

       vehicle while intoxicated was wholly independent of the evidentiary basis

       underlying its charge that Berg had committed an act of reckless driving.

       Garrett, 992 N.E.2d at 719. In particular, the State’s evidentiary facts

       establishing the offense of reckless driving established the element of

       endangerment for the offense of operating while intoxicated, as a Class D

       felony, but that evidence did not establish all of the essential elements of

       operating while intoxicated. See Spivey, 761 N.E.2d at 833. In other words, the

       evidentiary footprint underlying both of Berg’s offenses was not the same.

       Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015     Page 7 of 9
       Accordingly, there is no reasonable possibility that the jury “latched on to

       exactly the same facts for both convictions.” Lee, 892 N.E.2d at 1236.


[12]   “In addition to the instances covered by Richardson, ‘we 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)). One of these

       categories prohibits “‘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.’” 4 Id.

       (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)). But the

       behavior underlying Berg’s conviction for reckless driving was not “the very

       same behavior” underlying his conviction for operating while intoxicated, as a

       Class D felony. Rather, Berg’s reckless-driving conviction was based on the




       4
         Neither party suggests on appeal that Berg’s conviction for reckless driving might have been a factually
       lesser included offense to his conviction for operating a vehicle while intoxicated. See, e.g., Guyton, 771
       N.E.2d at 1143 (noting that the simultaneous entry of convictions for both a greater offense and its lesser-
       included offenses contravene Indiana double jeopardy law). However, on similar facts this court has rejected
       such an argument. Slate v. State, 798 N.E.2d 510, 516-17 (Ind. Ct. App. 2003), superseded by statute on other
       grounds, as stated in Outlaw v. State, 918 N.E.2d 379, 382 (Ind. Ct. App. 2009), adopted, 929 N.E.2d 196 (Ind.
       2010).
       Further, in Street v. State, 30 N.E.3d 41, 47-49 (Ind. Ct. App. 2015), trans. denied, we clarified that the State
       cannot use the same bodily injury to enhance multiple offenses. However, Indiana double jeopardy law
       “does not prohibit multiple enhancements based on a defendant’s use of the same weapon in the commission
       of multiple offenses.” Id. at 48 n.3 (citing Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003)); see also Sistrunk v.
       State, 36 N.E.3d 1051, 1054 (Ind. 2015) (“committing two or more separate offenses while armed with a
       deadly weapon . . . is not within the category of rules precluding enhancement of each offense based on ‘the
       very same behavior.’”). Neither party suggests on appeal that this law applies to Berg. See Taylor v. State, 717
       N.E.2d 90, 95 n.7 (Ind. 1999).

       Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015                              Page 8 of 9
       speed with which he drove his vehicle. His operating-while-intoxicated

       conviction, on the other hand, was enhanced to a Class D felony based on the

       fact that he had a prior operating-while-intoxicated conviction within the

       preceding five years. See Burp v. State, 672 N.E.2d 439, 440 (Ind. Ct. App.

       1996). And that Class D felony, habitual offender enhancement applies when

       the defendant has committed either a Class C misdemeanor or a Class A

       misdemeanor offense of operating while intoxicated. I.C. § 9-30-5-3(a)(1).

       Thus, there is no merit to the suggestion on appeal that Berg’s underlying Class

       A misdemeanor enhancement should be reduced to a Class C misdemeanor

       because the Class D felony enhancement applies regardless of the level of the

       underlying offense. Accordingly, Berg’s conviction for a Class D felony, and

       his right to be free from double jeopardy, is not implicated on these facts.


[13]   In sum, the trial court’s entry of judgment did not violate Berg’s double

       jeopardy rights, whether under Richardson or our common law, and we affirm

       his convictions.


[14]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1504-CR-127 | October 30, 2015   Page 9 of 9
