MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 27 2016, 8:34 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hubert Wheat, April 27, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1508-CR-1195
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Ronnie Huerta,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G19-1410-CM-48618
Robb, Judge.
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Case Summary and Issue
[1] Following a bench trial, the trial court found Hubert Wheat guilty of operating
a vehicle while intoxicated with an alcohol concentration equivalent (“ACE”)
of 0.15 or more, and operating a vehicle while intoxicated in a manner that
endangers a person, both Class A misdemeanors. Wheat raises one issue on
appeal: whether there is sufficient evidence of endangerment to support his
conviction for operating a vehicle while intoxicated in a manner that endangers
a person. Concluding the evidence is sufficient, we affirm his conviction. We
remand, however, with instructions for the trial court to vacate Wheat’s
conviction of operating a vehicle with an ACE of 0.15 or more.
Facts and Procedural History
[2] Shortly after midnight on October 21, 2014, Indianapolis Metropolitan Police
Department Officer Darryl Jones was traveling westbound on 38th Street when
a van without a working license plate light pulled out in front of him. The van
then made three illegal lane changes before making an illegal U-turn at the
intersection of 38th and Boulevard Place. Officer Jones conceded there was
“minimal traffic” at the time, transcript at 34; however, he also stated the
intersection at 38th and Boulevard is among the most dangerous intersections
in the city due to speed and sightlines: “there’s a lot of accidents at that
location,” id. at 13. Officer Jones followed the vehicle until it pulled into the
parking lot of a gas station at 38th and Capitol Avenue. Officer Jones activated
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his emergency lights and initiated a stop due to the multiple traffic infractions
committed.
[3] Officer Jones approached the vehicle and observed two occupants in the
vehicle. Officer Jones noted that the driver, identified as Wheat, smelled of
alcohol and had poor manual dexterity, slurred speech, and bloodshot, watery
eyes. Officer Jones had Wheat exit the vehicle and observed that Wheat was
unsteady and staggering. Officer Jones administered the horizontal gaze
nystagmus test and the one-leg stand test, two out of the three field sobriety tests
that Officer Jones regularly administers. Wheat failed both. Wheat stated that
he could not complete the third test—the nine-step walk and turn test—because
he recently had hip surgery. Officer Jones obtained a warrant for blood testing,
which showed Wheat’s blood contained 0.16 grams of alcohol per one hundred
milliliters of blood.
[4] Officer Jones did not cite Wheat for any of the traffic infractions. Wheat was,
however, charged with operating a vehicle while intoxicated in a manner that
endangers a person and operating a vehicle while intoxicated with an ACE of
0.15 or more, both Class A misdemeanors. The court held a bench trial, after
which it found Wheat guilty of both counts. The court then stated that for both
counts, it was imposing a sentence of 365 days with credit for three days served
and the balance suspended to probation and “[t]hey will run concurrently to
one another.” Tr. at 125-26. This appeal followed.
Discussion and Decision
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I. Sufficiency of the Evidence
A. Standard of Review
[5] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “It is the fact-
finder’s role, not that of appellate courts, to assess witness credibility and weigh
the evidence to determine whether it is sufficient to support a conviction.” Id.
The conviction will be affirmed unless “no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt.” Id. at 146-47.
(citation omitted). To convict Wheat of operating a vehicle while intoxicated as
a Class A misdemeanor, the State had to prove beyond a reasonable doubt that
Wheat operated his vehicle while intoxicated “in a manner that endangers a
person.” Ind. Code § 9-30-5-2(b).
B. Evidence of Endangerment
[6] Wheat does not challenge the sufficiency of the evidence showing he was
intoxicated. Instead, he argues there is insufficient evidence showing his
operation of the vehicle endangered a person because there was very little traffic
at the time and his traffic infractions were minor.
[7] In Outlaw v. State, 918 N.E.2d 379 (Ind. Ct. App. 2009), adopted by 929 N.E.2d
196 (Ind. 2010), a vehicle driven by Outlaw, accompanied by three passengers,
was pulled over for not having a properly illuminated license plate, but no other
traffic infractions were observed. Outlaw was, however, intoxicated. Outlaw
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was convicted of operating a vehicle while intoxicated in a manner that
endangers a person, a Class A misdemeanor. On appeal, Outlaw argued, in
part, that the State failed to present any evidence on the element of
endangerment. The State argued Outlaw’s intoxication was sufficient to show
he operated his vehicle in an unsafe manner, but conceded there was no other
evidence that Outlaw operated the vehicle in an unsafe manner. We reversed
Outlaw’s conviction, holding “the State was required to submit proof of
‘endangerment’ that went beyond mere intoxication in order for the defendant
to be convicted of operating while intoxicated, as a Class A misdemeanor.” Id.
at 382. Because the traffic stop “was based on a non-illuminated license plate
rather than erratic or unlawful driving, . . . no evidence other than the intoxication
suggests that Outlaw was operating his motor vehicle in a manner that would
endanger himself, his three passengers, or any other person.” Id. (emphasis
added).
[8] Unlike the facts in Outlaw, Officer Jones observed Wheat making several unsafe
and unlawful traffic maneuvers, in addition to observing his non-illuminated
license plate. See Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011)
(upholding a conviction for operating a vehicle while intoxicated in a manner
that endangers a person where the defendant crossed the centerline and ran a
stop sign because the defendant’s intoxication “resulted in unsafe driving
practices”), trans. denied. Although the officer opted not to cite Wheat for these
infractions, Officer Jones’ testimony regarding Wheat’s unlawful and unsafe
driving is sufficient to prove Wheat operated a vehicle in a manner that could
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endanger the public, the police, Wheat’s passenger, or Wheat himself. See
Staley v. State, 895 N.E.2d 1245, 1251 (Ind. Ct. App. 2008) (noting the
endangerment clause “does not require the State to prove a person other that
[sic] the defendant was actually in the path of the defendant’s vehicle or in the
same area”), trans. denied. Accordingly, the State presented sufficient evidence
to support Wheat’s conviction for operating a vehicle while intoxicated in a
manner that endangers a person.
II. Merger of Wheat’s Convictions
[9] The trial court found Wheat guilty of both Class A misdemeanors with which
he was charged and stated at the sentencing hearing it was imposing sentence
on both counts.1 We further note the sentencing order states there was a
“finding of guilty” as to operating a vehicle while intoxicated in a manner that
endangers a person and that, as to operating a vehicle with an ACE of 0.15 or
more, the “conviction merged.” Appellant’s Appendix at 15. The sentencing
order further reflects a 365-day sentence was imposed only on the conviction of
operating a vehicle while intoxicated in a manner that endangers a person. Id.
[10] Operating a vehicle with an ACE of 0.15 or more is a lesser-included offense of
operating a vehicle while intoxicated in a manner that endangers a person. See
Ind. Code § 9-13-2-131 (stating that evidence of an ACE of at least 0.08 is prima
1
Wheat’s counsel asked, “Don’t they merge, Judge[?]” Tr. at 126. The trial court replied, “Well, they
should merge, but I’m not sure how it’s going to get entered. All right, you’ll figure it out.” Id.
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facie evidence of intoxication). It appears, from both the trial court’s oral
statements at the sentencing hearing and the language of the sentencing order,
that the trial court entered a judgment of conviction on both counts, but
intended to avoid a double jeopardy violation. The trial court’s act of merging,
without also vacating, the conviction of a lesser-included offense is insufficient
to avoid a double jeopardy violation, however. Payton v. State, 818 N.E.2d 493,
497 (Ind. Ct. App. 2004), trans. denied. “Indeed, a double jeopardy violation
occurs when judgments of conviction are entered and cannot be remedied by
the ‘practical effect’ of concurrent sentences or by merger after conviction has
been entered.” Id. Accordingly, we remand with instructions for the trial court
to vacate the conviction of operating a vehicle with an ACE of 0.15 or more.
Conclusion
[11] The State presented sufficient evidence to support Wheat’s conviction for
operating a vehicle while intoxicated in a manner that endangers a person, a
Class A misdemeanor. His conviction is affirmed. However, we remand for
the conviction for operating a vehicle with an ACE of 0.15 or more to be
vacated.
[12] Affirmed and remanded with instructions.
Najam, J., and Crone, J., concur.
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