      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Feb 27 2020, 8:53 am

      court except for the purpose of establishing                                  CLERK
                                                                                Indiana Supreme Court
      the defense of res judicata, collateral                                      Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      – Appellate Division
                                                               John R. Millikan
      Indianapolis, Indiana                                    Angela Sanchez
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Alvin Coleman Carter,                                    February 27, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-1685
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Therese A.
      Appellee-Plaintiff.                                      Hannah, Magistrate
                                                               Trial Court Cause No.
                                                               49G08-1811-CM-39436



      Mathias, Judge.


[1]   Following a bench trial, Alvin Coleman Carter (“Carter”) was found guilty of

      Class A misdemeanor carrying a handgun without a license, Class B

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020                 Page 1 of 11
      misdemeanor disorderly conduct, and Class B misdemeanor public

      intoxication, for which the trial court entered judgments of conviction. Carter

      argues that his Class B misdemeanor convictions violate double jeopardy and

      that resentencing is warranted to correct discrepancies between the trial court’s

      oral and written sentencing orders.


[2]   We affirm in part and remand with instructions to vacate in part and

      resentence.


                                 Facts and Procedural History
[3]   Around 7:00 p.m. on November 11, 2018, the Indianapolis Metropolitan Police

      Department (“IMPD”) received several 911 reports of shots fired on the

      southeast side of Indianapolis. The callers described the sound of multiple

      weapons being fired from a white sedan in the parking lot of an apartment

      complex. Officer Eric Snowden responded; he located the white sedan and

      illuminated it and the three men inside with his spotlight. The front seat

      passenger—later identified as Carter—and the back seat passenger appeared to

      be making furtive “shoving” movements toward the driver. Tr. p. 7. When

      backup arrived, officers ordered the three men to exit the vehicle; as the driver

      stepped out of the car, a handgun fell from his lap. Two more handguns were

      discovered in the driver’s waistband when he was patted down. No weapons

      were discovered on Carter or the other passenger. The driver was licensed to

      carry a handgun in public; Carter and the other passenger were not.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020   Page 2 of 11
[4]   The search and seizure in the parking lot and the attendant yelling drew the

      neighbors’ attentions. Carter and the other passenger shouted profanities at the

      officers and refused repeated requests to quiet down. The men were belligerent

      and visibly intoxicated, smelling of alcohol and using slurred speech. Because a

      “hostile” crowd had gathered around the scene, officers arrested the men and

      left the scene without searching for shell casings. Tr. p. 13.


[5]   On November 12, Carter was charged with Count I, Class A misdemeanor

      carrying a handgun without a license; Count II, Class B misdemeanor

      disorderly conduct; and Count III, Class B misdemeanor public intoxication. A

      bench trial was held on June 19, 2019, at which time the trial court heard

      testimony from Officer Snowden and from a gun liaison officer responsible for

      processing the weapons recovered at the scene. Carter was found guilty as

      charged, and a sentencing hearing was set for one week later. On June 26, the

      trial court pronounced Carter’s sentence as follows: for Count I, 365 days of

      incarceration with 357 suspended to probation; for Counts II and III, “time

      served.” Tr. p. 38.


[6]   A conflicting written sentencing order was issued the same day, imposing 180-

      day sentences for Counts II and III, with 172 days suspended. Appellant’s App.

      p. 12. Whether the 180-day sentences were concurrent or consecutive to the

      365-day sentence was not specified. A second written sentencing order was

      issued on August 22, imposing consecutive 90-day sentences for Counts II and

      III, with 82 and 80 days suspended, respectively. Appealed Order, p. 1. This

      appeal followed.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020   Page 3 of 11
                                                Double Jeopardy
[7]   Carter argues that his convictions for disorderly conduct 1 and for public

      intoxication2 violate principles of double jeopardy. He asserts that the evidence

      presented to prove he was guilty of public intoxication was the same evidence

      presented to prove he was guilty of disorderly conduct, in violation of the

      Indiana Constitution. The State disputes that Carter’s convictions were not

      proven by unique evidentiary facts. Whether multiple convictions violate

      double jeopardy is a question of law that we review de novo. Hines v. State, 30

      N.E.3d 1216, 1219 (Ind. 2015). And on appeal, it is the defendant’s burden to

      show that his convictions violate his constitutional right to be free from double

      jeopardy. Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002).


                                   I. ‘Actual Evidence’ Constitutional Test

[8]   The double jeopardy clause of the Indiana Constitution provides that “[n]o

      person shall be put in jeopardy twice for the same offense.” Ind. Const. Art. 1, §

      14. Multiple convictions are violative of this constitutional protection against

      double jeopardy if 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




      1
       As a Class B misdemeanor, defined by statute as “[a] person who recklessly, knowingly, or intentionally . . .
      makes unreasonable noise and continues to do so after being asked to stop[.]” Ind. Code § 35-45-1-3(a)(2).
      2
        Defined by statute as a Class B misdemeanor when “a person [is] in a public place or a place of public resort
      in a state of intoxication caused by the person’s use of alcohol [], if the person . . . breaches the peace or is in
      imminent danger of breaching the peace[.]” I.C. § 7.1-5-1-3(a)(3).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020                      Page 4 of 11
       offense.” Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999); see also Alexander v.

       State, 768 N.E.2d 971 (Ind. Ct. App. 2002), aff’d on reh’g, 772 N.E.2d 476, trans.

       denied. Thus, the “actual evidence presented at trial is examined to determine

       whether each challenged offense was established by separate and distinct facts.”

       Richardson, 717 N.E.2d at 53.


[9]    The charging information alleged as to Count II, disorderly conduct, that Carter

       “recklessly, knowingly or intentionally [made] an unreasonable noise; and

       continued to do so after being asked to stop.” Appellant’s App. p. 51. The State

       presented evidence in the form of Officer Snowden’s testimony that Carter

       unreasonably yelled profanities and ignored the police officers’ repeated

       directions to quiet down. For Count III, public intoxication, the charging

       information alleged that Carter was “found at a public place or a place of public

       resort, in a state of intoxication caused by the person’s use of alcohol or a

       controlled substance [as defined by statute]; and further, [that he] either

       breached the peace or was in imminent danger of breaching the peace[.]” Id.

       The State presented evidence that Carter smelled of alcohol, had bloodshot

       eyes, and slurred his speech while yelling profanities. Officer Snowden testified

       that the unreasonable noise Carter made in a public, residential area drew the

       attention of neighbors and caused a hostile crowd to gather, in breach of the

       peace.


[10]   The trial court determined from this evidence that Carter committed disorderly

       conduct when he made unreasonable noise and refused directions to stop; and,

       he committed public intoxication by being intoxicated in a public area and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020   Page 5 of 11
       causing a breach or an imminent breach of the peace. The disorderly conduct

       offense did not require evidence that Carter was intoxicated, nor did it require

       evidence that Carter’s actions breached the peace. Compare Ind. Code § 35-45-1-

       3(a)(2), with I.C. § 7.1-5-1-3(a)(3). Thus, these crimes included evidence or facts

       not essential to the other, that is to say, each offense required proof of at least

       one unique evidentiary fact. Because Carter failed to demonstrate a reasonable

       probability that the trial court used the same evidentiary facts to establish both

       offenses, we hold that his convictions did not, under the ‘actual evidence’ test,

       violate the constitutional prohibition against double jeopardy.


                                    II. Common Law Double Jeopardy

[11]   Nevertheless, we adhere to a series of rules of statutory construction and

       common law often described as double jeopardy but not governed by the ‘actual

       evidence’ constitutional test. Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002).

       One of these common law rules prohibits “[c]onviction and punishment for a

       crime which consists of the very same act as an element of another crime for

       which the defendant has been convicted and punished.” Richardson, 717 N.E.2d

       at 55 (Sullivan, J., concurring) (giving the example of a confinement conviction

       vacated because it was coextensive with the behavior necessary to establish an

       element of a robbery conviction). Carter asserts that his convictions for

       disorderly conduct and public intoxication run afoul of this common law rule




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020   Page 6 of 11
       because the act underlying his conviction for the former is the same as the act

       that constitutes an element of his conviction for the latter. 3


[12]   The act underlying Carter’s conviction for disorderly conduct was his refusal to

       stop shouting profanities at police officers. An element of the other crime—

       public intoxication—is that the intoxicated individual breaches the peace by his

       actions. The act underlying Carter’s conviction for public intoxication was the

       very same act as the act underlying his conviction for disorderly conduct: Carter

       shouted belligerently at police officers. As a result of his shouting, the State’s

       evidence was that a “hostile” crowd of neighbors gathered to see the

       commotion, constituting a breach of the peace. Tr. p. 13. The State summarized

       the evidence supporting Counts II and III during closing argument:


                As to Count Two, Disorderly Conduct; Officer Snowden testified
                that while the defendant Mr. Carter was detained he began
                yelling profanities. Officers testified that he was very loud, loud
                enough for people to empty out into the street and come outside.
                It was around 8pm when Officers asked him to quiet down
                multiple times, therefore the State has proven that Mr. Carter
                knowingly, intentionally, recklessly made an unreasonable noise
                and refused to quit after being asked by Officers including Officer
                Snowden.




       3
         We note that in its Appellee’s Brief, the State presented no argument as to the merits of Carter’s common
       law double jeopardy argument. We need not develop an argument for the appellee and will apply a less
       stringent standard of review to the appellant’s argument. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 725
       (Ind. Ct. App. 2009). The appellee’s failure to provide an argument, however, does not relieve us of our
       obligation to correctly apply the law to the facts in order to determine whether vacation due to double
       jeopardy is required. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020                Page 7 of 11
               Count Three, as to Public Intoxication, they were on a public
               road when this occurred. [] Officer Snowden noticed signs of
               intoxication. He could tell [the other passenger] and Mr. Carter
               were both acting belligerent, slurring their speech, eyes were red,
               smelled of alcohol, Officer Snowden is an officer that has
               received training in detecting intoxication, he has come into
               contact with hundreds of intoxicated individuals. He formed an
               opinion that [] Mr. Carter was intoxicated. Again, he was on a
               public street, based on his refusal to quiet down and disruption
               of the neighborhood by creat[ing] the loud scene, he was found
               in a public place, was in the state of intoxication and was
               breeching [sic] the peace by his unruly behavior.


       Tr. pp. 27–28, (emphasis added).


[13]   At trial, the State made no further argument nor presented evidence of other

       actions taken by Carter to breach the peace. That is, given how this case was

       charged and proven, Carter’s conviction for disorderly conduct was based on

       the very same act—him shouting profanities—which formed an essential

       element of public intoxication: a disturbance resulting in breach of the peace.

       Because Carter’s conviction for disorderly conduct is coextensive with the

       behavior necessary to establish an element of his conviction for public

       intoxication, the common law rule against double jeopardy was violated when

       the trial court entered judgments of conviction for both offenses. See Richardson,

       717 N.E.2d at 56 (Sullivan, J., concurring) (defendant should not be punished

       for the crime of conspiracy where one element of conspiracy “is the very same

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

       punished.”); see also Simmons v. State, 793 N.E.2d 321 (Ind. Ct. App. 2003)

       (finding common law double jeopardy violation where act of striking victim
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020   Page 8 of 11
       with a bat was the very same act alleged in support of convictions for battery as

       a Class C felony and battery as a Class A misdemeanor).


                                                   III. Remedy

[14]   The trial court should have entered judgment of conviction for only one of

       Carter’s Class B misdemeanor offenses. “When two convictions are found to

       contravene Indiana double jeopardy principles . . . one of the convictions must

       be vacated.” Owens v. State, 742 N.E.2d 538, 544–45 (Ind. Ct. App. 2001)

       (internal citation omitted), trans. denied. In most cases in which a double

       jeopardy violation is found, the reviewing court simply orders the conviction

       that is the lower class of crime to be vacated. See Gregory v. State, 885 N.E.2d

       697, 703 (Ind. Ct. App. 2008) (remanding to vacate conviction where a double

       jeopardy violation occurred and “cannot be remedied by the practical effect of

       concurrent sentences or by merger after conviction has been entered.”) (citation

       omitted), trans. denied. Here, however, both offenses are Class B misdemeanors

       and therefore “of equal severity.” Noble v. State, 734 N.E.2d 1119, 1125 (Ind. Ct.

       App. 2000), trans. denied. And, as is discussed supra, due to discrepancies in the

       trial court’s sentencing orders, we cannot say with certainty that there are “no

       more or less severe penal consequences for vacating one [offense] instead of the

       other.” Id. at 1126. Accordingly, we remand this case to the trial court with

       instructions to vacate one of Carter’s Class B misdemeanor convictions. If, in

       resentencing Carter for Counts II and III, the sentences vary in severity, the

       conviction with the less severe consequence should be vacated. See Moala v.

       State, 969 N.E.2d 1061 (Ind. Ct. App. 2012) (discussing why Class C

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020   Page 9 of 11
       misdemeanor conviction with more severe penal consequences than Class B

       misdemeanor conviction must be vacated in double jeopardy context).


                                             IV. Sentencing Error

[15]   Carter argues and the State concedes that remand for resentencing is

       appropriate to allow the trial court to correct discrepancies between its

       statements at the sentencing hearing and its subsequent written orders. Our

       approach to reviewing sentences in non-capital cases is to examine both the

       written and oral sentencing statements to discern the findings of the trial court.

       Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002). We do not presume the

       superior accuracy of an oral sentencing statement; rather, we examine it

       alongside the written sentencing statement “to assess the conclusions of the trial

       court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We may credit the

       statement that accurately pronounces the sentence or remand for resentencing.

       Willey v. State, 712 N.E.2d 434, 446 n.8 (Ind. 1999).


[16]   Here, only the sentence imposed for Count I, carrying a handgun without a

       license as a Class A misdemeanor, was consistent throughout the sentencing

       orders: one year with 357 days suspended to probation. The sentences for

       Counts II and III, however, were initially expressed during the sentencing

       hearing as consisting of “time served,” and nothing further. Tr. p. 38. Then, in a

       sentencing order issued the day of the sentencing hearing, on June 26, 2019, the

       trial court imposed for each of Count II and Count III a 180-day sentence with

       172 days suspended, but did not specify whether those sentences were to be

       served concurrent or consecutive. Appellant’s App. pp. 12–13. Yet a third
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020   Page 10 of 11
       sentencing order, dated August 22, 2019, imposed consecutive 90-day sentences

       with 82 and 80 days suspended to probation for Counts II and III, respectively.


[17]   This case is an example of an oral sentencing statement of inferior accuracy as

       compared to the subsequent written orders. Accordingly, we do not attempt to

       credit any one of the three sentencing pronouncements and instead remand for

       resentencing. Remand is also warranted to correct the double jeopardy error

       that arose from Carter’s convictions for disorderly conduct and public

       intoxication, as explained supra.


                                                 Conclusion
[18]   Carter’s protection from double jeopardy was violated by his convictions for

       disorderly conduct and public intoxication, the underlying bases for which

       constituted the same act. Therefore, we affirm his conviction for Class A

       misdemeanor carrying a handgun without a license and affirm one Class B

       misdemeanor conviction. We remand with instructions to vacate the other

       Class B misdemeanor conviction and resentence Carter accordingly.


[19]   Affirmed in part, vacated in part, and remanded with instructions.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1685 | February 27, 2020   Page 11 of 11
