MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Oct 31 2017, 9:04 am

this Memorandum Decision shall not be                                      CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael G. Moore                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kahteith Moeseley,                                       October 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1705-CR-905
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff                                       Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1604-F6-14580



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-905 | October 31, 2017         Page 1 of 7
                                             Case Summary
[1]   Kahteith Moeseley appeals his convictions, following a jury trial, for level 6

      felony operating a vehicle while intoxicated (“OWI”) and class C misdemeanor

      operating a vehicle with an alcohol concentration equivalent (“ACE”) of 0.08

      or more.1 He contends that the State presented insufficient evidence that he

      endangered a person to support his level 6 felony OWI conviction. He further

      asserts that his two convictions violate double jeopardy principles. Finding the

      evidence sufficient, and noting that the State properly concedes that the class C

      misdemeanor conviction must be vacated on double jeopardy grounds, we

      affirm in part and remand with instructions.


                                 Facts and Procedural History
[2]   On April 15, 2016, Indianapolis Metropolitan Police Department (“IMPD”)

      Officers Clayton Goad and Carl Clark responded to the scene of a vehicle

      accident at the intersection of 42nd Street and Arborcrest Drive in Marion

      County. When the officers arrived, they observed the two vehicles that

      appeared to have been involved in the accident and several individuals arguing

      between the vehicles. Forty-seven-year-old Moeseley told Officer Goad that he

      was the driver of one of the vehicles, and that he had passengers in his vehicle.

      Officer Goad observed a child inside Moeseley’s vehicle who appeared to be

      younger than ten years old. Moeseley stated to Officer Goad that he was



      1
       Moeseley was also convicted of two counts of class A misdemeanor invasion of privacy. He does not
      appeal those convictions.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-905 | October 31, 2017       Page 2 of 7
      stopped at the intersection waiting to turn, and that when he turned, he was

      struck by the other vehicle on the passenger side of his vehicle. As Moeseley

      spoke to Officer Goad, the officer noticed that Moeseley had glassy, bloodshot

      eyes, slurred speech, and unsteady balance. Officer Goad also detected the

      odor of alcoholic beverage on Moeseley’s person. Based upon his observations,

      as well as his training and experience, Officer Goad believed that Moeseley was

      intoxicated. Accordingly, Officer Goad called for the assistance of the “DUI

      unit[].” Tr. at 18.


[3]   IMPD Officer Nicholas Wroblewski, a member of the “DUI [T]ask [F]orce,”

      subsequently arrived at the scene of the accident. Id. at 38. Officer Wroblewski

      made contact with Moeseley to investigate “the facts of the crash” and the

      “suspected” impaired driver. Id. at 39. Moeseley informed Officer Wroblewski

      that his vehicle was stationary in the intersection as he then made a turn, and

      the other car hit him. Moeseley stated that he had two passengers in his car.

      Officer Wroblewski observed that one of the passengers was a child. Officer

      Wroblewski observed that Moeseley exhibited numerous signs of intoxication.

      After Moeseley failed all three field sobriety tests administered by Officer

      Wroblewski, the officer determined that he had probable cause to “offer

      [Moeseley] the chemical test.” Id. at 49. Moeseley consented to the test, and he

      was transported to a local hospital for a blood draw. The results of the

      chemical test revealed that Moeseley had an alcohol concentration equivalent

      of 0.134 grams of alcohol per 100 milliliters of blood. Id. at 80.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-905 | October 31, 2017   Page 3 of 7
[4]   The State charged Moeseley with five counts: level 6 felony neglect of a

      dependent; level 6 felony OWI; class C misdemeanor operating a vehicle with

      an ACE of 0.08 or more; and two counts of class A misdemeanor invasion of

      privacy. The State subsequently dismissed the neglect of a dependent charge.

      Following a trial, the jury found Moeseley guilty as charged on the remaining

      four counts. The trial court sentenced Moeseley to concurrent sentences on all

      four counts, for an aggregate sentence of 545 days, with 365 days suspended to

      probation and the remaining time to be served in community corrections. This

      appeal ensued.


                                     Discussion and Decision
[5]   Moeseley contends that the State presented insufficient evidence to support his

      level 6 felony OWI conviction. When reviewing a claim of insufficient

      evidence, we neither reweigh the evidence nor assess witness credibility. Bell v.

      State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable

      inferences drawn therefrom that support the conviction, and will affirm if there

      is probative evidence from which a reasonable factfinder could have found the

      defendant guilty beyond a reasonable doubt. Id. In short, if the testimony

      believed by the trier of fact is enough to support the conviction, then the

      reviewing court will not disturb it. Id. at 500.


[6]   A person who operates a vehicle while intoxicated commits a class C

      misdemeanor. Ind. Code § 9-30-5-2(a). The offense is elevated to a class A

      misdemeanor if the person operates a vehicle in a manner that endangers a


      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-905 | October 31, 2017   Page 4 of 7
      person. Ind. Code § 9-30-5-2(b). The offense is further elevated to a level 6

      felony if the person is twenty-one years of age and operated a vehicle in which

      at least one passenger was less than eighteen years of age. Ind. Code § 9-30-5-3.

      Moeseley concedes that the evidence presented by the State clearly established

      that he was over the age of twenty-one and that he operated a vehicle while

      intoxicated with a passenger who was less than eighteen years of age. His sole

      assertion on appeal is that the State failed to provide sufficient evidence of

      endangerment.


[7]   To prove that Moeseley operated a vehicle “in a manner that endanger[ed] a

      person,” the State had to present evidence “showing that the defendant’s

      condition or operating manner could have endangered any person, including

      the public, the police, or the defendant.” See Vanderlinden v. State, 918 N.E.2d

      642, 644 (Ind. Ct. App. 2009), trans. denied (2010). Endangerment does not

      require “a person other than the defendant be in the path of the defendant’s

      vehicle or in the same area to obtain a conviction.” Id. at 644-45. However, the

      State is required to submit proof of endangerment that goes beyond mere

      intoxication. Outlaw v. State, 918 N.E.2d 379, 382 (Ind. Ct. App. 2009), adopted

      by 929 N.E.2d 196 (Ind. 2010).


[8]   Here, the evidence presented by the State went beyond mere intoxication. In

      addition to the evidence of Moeseley’s intoxication, the State presented

      evidence that Moeseley was operating a vehicle when a collision occurred. The

      evidence indicates that another vehicle struck Moeseley’s vehicle on the

      passenger side as Moeseley turned. The jury could reasonably infer that

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-905 | October 31, 2017   Page 5 of 7
       Moeseley’s impaired judgment caused him to recklessly turn in front of another

       vehicle, resulting in a collision, and thus that his condition or operating manner

       could have endangered any person. Moeseley’s assertions to the contrary are

       simply a request for us to reweigh the evidence in his favor, and we will not.

       The State presented sufficient evidence to support Moeseley’s level 6 felony

       OWI conviction.


[9]    Having said that, we agree with Moeseley, and the State concedes, that his

       convictions for both level 6 felony OWI and the lesser included class C

       misdemeanor operating a vehicle with an ACE of 0.08 or more cannot stand

       based on double jeopardy principles. See Hornback v. State, 693 N.E.2d 81, 85

       (Ind. Ct. App. 1998) (noting that offense of operating a vehicle with a BAC of

       .10% or more is lesser included offense of OWI); see also Bass v. State, 75 N.E.3d

       1100, 1102 (Ind. Ct. App. 2017) (noting that entry of conviction “for both an

       offense and its lesser included offenses” is impermissible under both state and

       federal double jeopardy rules). Our review of the sentencing transcript reveals

       that the trial court attempted to avoid a double jeopardy violation by merging

       the convictions and sentencing Moeseley to concurrent terms. However, it is

       well settled that merger of convictions, without vacatur, is insufficient to

       remedy a double jeopardy violation. West v. State, 22 N.E.3d 872, 875 (Ind. Ct.

       App. 2014), trans. denied (2015). We thus remand with instructions to vacate

       the conviction on the lesser-included offense.


[10]   In sum, we affirm Moeseley’s level 6 felony OWI conviction and remand with

       instructions for the trial court to vacate the lesser conviction and sentence.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-905 | October 31, 2017   Page 6 of 7
[11]   Affirmed in part and remanded with instructions.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-905 | October 31, 2017   Page 7 of 7
