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 Sep 03 2014, 9:14 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK K. PHILLIPS GREGORY F. ZOELLER
Boonville, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JARED W. BAEHL, )
)
Appellant-Defendant, )
)
vs. ) No. 87A01-1311-CR-515
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WARRICK SUPERIOR COURT
The Honorable Robert R. Aylsworth, Judge
Cause No. 87D02-1210-FD-390
September 3, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Jared W. Baehl (“Baehl”) appeals his conviction for Operating a Vehicle While
Intoxicated,1 challenging the sufficiency of the evidence and the admission of certain
evidence at his jury trial. We remand for clarification of the judgment from which Baehl
appeals.
Facts and Procedural History
On September 27, 2012, Sergeant Matt Tevault of the Chandler Police Department
(“Sergeant Tevault”) initiated a traffic stop of a black truck driven by Baehl. His two small
children were passengers in the truck.
Sergeant Tevault detected an odor of alcohol and requested that Baehl exit the truck
and perform a series of field sobriety tests. Based upon Baehl’s performance of those tests,
Sergeant Tevault transported Baehl to jail. There, Baehl was administered a Breathalyzer;
his blood alcohol concentration registered as .09.
The State charged Baehl with Operating a Vehicle While Intoxicated, as a Class D
felony, Operating a Vehicle While Intoxicated, as a Class A misdemeanor, and Operating a
Vehicle with an Alcohol Concentration of .08.
A jury found Baehl guilty as charged.2 On November 22, 2013, Baehl was sentenced
to one year of imprisonment, with two days credit for time served and the balance suspended
to probation. This appeal ensued.
1
Ind. Code §§ 9-30-5-2, 9-30-5-3.
2
Although no verdict forms appear in the Appendix, the verdict forms were read in open court.
2
Discussion and Decision
The State alleged that Baehl violated Indiana Code section 9-30-5-2, providing:
(a) Except as provided in subsection (b), a person who operates a vehicle
while intoxicated commits a Class C misdemeanor.
(b) An offense described in subsection (a) is a Class A misdemeanor if the
person operates a vehicle in a manner that endangers a person.
The State further alleged that the offense was elevated to a Class D felony,3 pursuant
to Indiana Code Section 9-30-5-3(a)(2)(C), because Baehl, a person over the age of twenty-
one, committed the alleged offense while at least one passenger in the vehicle was less than
eighteen years of age.
Baehl challenges the sufficiency of the evidence to support his conviction, which he
apparently believes to be a Class A misdemeanor. The State claims that Baehl was convicted
of a Class D felony and that the State presented sufficient evidence to support that
conviction. The record is conflicting.
On November 5, 2013, when the jury returned its guilty verdicts, the trial court stated:
Show the Court will enter judgment on verdict on Count I, guilty of Operating
a Vehicle While Intoxicated Endangering a Person With a Passenger Less
Than 18 Years of Age. The Court will also enter the verdict on Count III,
Operating a Vehicle With an ACE of .08% or More. The Court will not enter
a judgment on Count II, guilty of Operating a Vehicle While Intoxicated
Endangering a Person. It, in fact, is a lesser-included offense of the offense in
Count I, so the Court will not enter a judgment of conviction on the verdict
regarding Count II and will show the judgment on Count I and Count III only,
as Count II is a lesser-included offense on Count I and of which Mr. Baehl has
been found guilty by the verdict returned by the jury.
3
For offenses committed on or after July 1, 2014, the crime is classified as a Level 6 felony.
3
(Tr. 138.) An order of November 8, 2013 reflected the entry of judgment on Counts I and III,
and set the sentencing hearing for November 22, 2013.
The Appellant’s Brief contains a copy of an “Order Entry for 11/22/2013” stating that
judgment was entered on Count I as a misdemeanor. Appellant’s Brief at 14-15. A copy of
this order is not included within the Appendix.
However, the Chronological Case Summary in the Appendix contains an entry for
November 22, 2013, providing in pertinent part:
Court gives the parties an opportunity to address the court prior to sentencing.
Court, being duly advised, enters judgment of conviction on Count I, operating
a vehicle while intoxicated endangering a person with a passenger less than 18
years of age, as a Class A misdemeanant, and not as a Class D felon. Court
confirms Count II is a lesser included offense of Count I. Court enters
judgment of conviction on Count III, operating a vehicle with an ACE of .08
or more, as a Class C misdemeanor. Court orders Count III merged into Count
I and sentences defendant on Count I to one year at the Indiana Dept. of
Correction.
(App. 6.) Our review of the sufficiency of the evidence and the trial court’s evidentiary
rulings is impeded by the lack of clarity as to the offense of which Baehl was convicted.
Accordingly, we remand for clarification.4
Remanded.
NAJAM, J., and PYLE, J., concur.
4
We also instruct the trial court, on remand, to vacate the conviction for Count III. A trial court’s act of
merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation. Green v.
State, 856 N.E.2d 703, 704 (Ind. 2006).
4