MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 28 2016, 6:22 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any 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
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tanno Sheard, April 28, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1510-CR-1644
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff. Rothenberg, Judge
The Honorable Amy J. Barbar,
Magistrate
Trial Court Cause No.
49G02-1309-FC-58033
Najam, Judge.
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Statement of the Case
[1] Tanno Sheard appeals his conviction for operating a vehicle while intoxicated,
causing death, as a Class C felony, following a jury trial. Sheard raises two
issues on appeal, namely:
1. Whether the State presented sufficient evidence to support his
conviction.
2. Whether the trial court erred in merging, rather than vacating,
counts II, III, and IV into count I.
[2] We affirm Sheard’s conviction, but we remand with instructions for the trial
court to clarify whether Sheard continues to have four judgments of conviction
entered against him.
Facts and Procedural History
[3] On September 2, 2013, Douglas Levinson and his husband Kevin Woloshyn
were vacationing in Indianapolis for the holiday weekend. Levinson was
driving a Pontiac Vibe SUV, and Woloshyn was in the passenger seat, as they
travelled east on Fall Creek Road. It was after 2:00 a.m. and the two were
returning to their hotel after dining at a restaurant and then spending some time
at a bar. Woloshyn had had some alcoholic drinks at the bar, but Levinson had
had no alcohol that evening.
[4] As Levinson approached the intersection of Fall Creek and Keystone Avenue
he saw an ambulance in the left turn lane, stopped at the red light. The
ambulance, driven by Emergency Medical Technician (“EMT”) Scott Newby
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of Indianapolis Emergency Medical Services, was waiting to turn north onto
Keystone Avenue. The other member of the paramedic team for the ambulance
that night was Joel Rees, who was the passenger. As Levinson approached the
intersection in his SUV, the light turned from red to green and he proceeded
through the intersection. Levinson’s vision of oncoming traffic, moving
southbound on Keystone Avenue, was blocked by the ambulance stopped in the
left-hand turn lane to Levinson’s left side.
[5] From where EMT Rees was sitting in the ambulance on the passenger side, he
could see a red car moving at a high rate of speed southbound on Keystone and
approaching the intersection with Fall Creek. Rees observed that the car was
approaching the red light so quickly that it would not be able to stop. Rees
shouted to Newby who then stopped his approach into the intersection, and the
red car sped past the ambulance, just missing a collision by one foot. Rees1 and
Newby then saw the red car collide with Levinson’s SUV just a few feet away
from the ambulance. Newby and Rees saw that, like them, the SUV had a
green light at the time.
[6] Rees called in the accident and requested police and fire assistance. Newby and
Rees then set to work tending to the four persons2 involved in the collision.
After doing triage, Rees and Newby determined that the passenger in the
1
Rees could not say which car hit the other first, but he was certain that the red car ran the red light and
collided with the SUV, which had a green light. Newby saw the red car hit the SUV first.
2
There was one passenger in the red car.
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SUV—Woloshyn—needed the most assistance and they focused on him.
Meanwhile, Officer Jason Rauch of the Indianapolis Metropolitan Police
Department and its Fatal Alcohol Crash Team (“FACT”) arrived at the scene
of the collision and saw the ambulance and Levinson’s SUV, still facing east on
Fall Creek, with extensive front-end damage. Officer Rauch identified the
driver of the SUV as Levinson and the passenger of the SUV as Woloshyn.
Officer Rauch then spoke with Sheard and identified him as the driver of the
red car, a Chevy Impala.
[7] Officer Rauch, who had previously investigated approximately 250 operating
while intoxicated cases, observed no signs of intoxication while speaking with
Levinson, but he did observe signs of intoxication in Sheard. Specifically,
Officer Rauch noticed the odor of alcohol coming from Sheard, and he
observed that Sheard had bloodshot and watery eyes. Officer Rauch asked
Sheard if he had been drinking alcohol that evening, and Sheard said he had
had two alcoholic drinks. Officer Rauch then transported Sheard to the police
station and administered to Sheard the field sobriety test known as the
Horizontal Gaze Nystagmus Test. This test consists of six “clues,” and if a
person fails four out of the six clues the person fails the sobriety test. Sheard
failed all six clues of this test. Officer Rauch then administered to Sheard the
Certified Breath Test, and, on Sheard’s third try at blowing into the machine, he
scored a blood alcohol content (“BAC”) of .09 Officer Rauch then arrested
Sheard.
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[8] Meanwhile, Woloshyn had been taken to the hospital where he twice went into
cardiac arrest. Woloshyn had multiple blunt force trauma to almost all of his
organs, and he suffered hemorrhaging to his heart, liver, pancreas, kidney,
spleen, and small intestine. Woloshyn’s injuries caused him to die later that
night.
[9] On September 4, 2013, the State charged Sheard with four counts: (1)
operating a motor vehicle while intoxicated causing death, as a Class C felony;
(II) operating a motor vehicle with a BAC greater than .08, causing death, as a
Class C felony; (III) operating a motor vehicle while intoxicated, as a Class A
misdemeanor; and (IV) operating a motor vehicle with a BAC between .08 and
.15, a Class C misdemeanor. At the conclusion of Sheard’s two-day trial, the
jury found him guilty of all four counts. The trial court entered a judgment of
conviction on all four counts, but it noted that “at the time of
sentencing . . . we can talk about what needs to merge with what[,] if anything
does. I think they do merge with each other. But we will enter the jury’s
verdict at this point.” Tr. at 220-21. At the beginning of the September 23,
2015, sentencing hearing, the trial court stated that “it looks like to me that
counts two, three, and four should all merge into count one,” id. at 230, and the
court then sentenced Sheard to four years of home detention on count I. This
appeal ensued.
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Discussion and Decision
Issue One: Sufficiency of the Evidence
[10] Sheard contends that the State failed to provide sufficient evidence to support
his conviction on Count I. In reviewing a sufficiency of the evidence claim, we
neither reweigh the evidence nor assess the credibility of the witnesses. See, e.g.,
Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the
probative evidence and reasonable inferences therefrom that support the
conviction, Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans.
denied, and we “consider conflicting evidence most favorably to the trial court’s
ruling,” Wright v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the
probative evidence and reasonable inferences drawn from that evidence “could
have allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.” Jackson, 925 N.E.2d at 375. Pursuant to Indiana Code
Section 9-30-5-5(a)(3) (2013), to prove that Sheard operated a vehicle while
intoxicated, causing death, the State was required to prove beyond a reasonable
doubt that Sheard operated a vehicle while he was intoxicated, and his
operation of the vehicle caused the death of another person.
[11] Sheard first asserts that the State failed to prove he was intoxicated. Indiana
Code Section 9-13-2-86 defines intoxication in pertinent part as being under the
influence of alcohol “so that there is an impaired condition of thought and
action and the loss of normal control of a person’s faculties.” Impairment can
be established by evidence of the following: “‘(1) the consumption of a
significant amount of alcohol; (2) impaired attention and reflexes; (3) watery or
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bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; and
(6) slurred speech.’” Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009)
(quoting Fought v. State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008)), adopted by
929 N.E.2d 196 (Ind. 2010).
[12] Here, the evidence submitted by the State demonstrated that, at the time of his
arrest, Sheard had watery, bloodshot eyes and smelled of alcohol. Further,
Officer Rauch administered a field sobriety test and a Certified Breath Test,
both of which Sheard failed. Sheard also twice failed to produce a sufficient
breath sample to properly complete the certified breathalyzer test. And Sheard
admitted that he had had two alcoholic beverages before he operated his motor
vehicle. Similar evidence was sufficient to prove intoxication in Outlaw, and it
is sufficient here. See id. Sheard’s assertions to the contrary are merely requests
for this court to reweigh the evidence, which we will not do. See Jackson, 925
N.E.2d at 375.
[13] Sheard next asserts that the State failed to prove that his operation of his motor
vehicle caused Woloshyn’s death. To prove the causation element of the crime
of operating a motor vehicle while intoxicated causing death, the State was
required to show that Sheard’s operation of a motor vehicle while intoxicated
was a “substantial cause” of the resulting death, not a mere “contributing”
cause. Abney v. State, 766 N.E.2d 1175, 1177 (Ind. 2002).
The court in Abney restated the well-settled rule established in
Micinski v. State, 487 N.E.2d 150, 154 (Ind. 1986), that the State
must prove that the defendant’s conduct was a proximate cause
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of the victim’s injury or death. Id. at 1178. But “conduct,” in the
context of Micinski and Abney, means the driver’s act of operating
the vehicle, not the particular manner in which the driver
operates the vehicle. Spaulding v. State, 815 N.E.2d 1039, 1042
(Ind. Ct. App. 2004).
Rowe v. State, 867 N.E.2d 262, 268 (Ind. Ct. App. 2007).
[14] Here, Sheard maintains that the State failed to provide sufficient evidence that
Sheard “entered the intersection under a red light.” Appellant’s Br. at 14. We
disagree. The State presented the following evidence that Sheard sped through
a red light at the intersection and crashed into the SUV, causing the injuries to
Woloshyn that resulted in his death: (1) Officer Rauch identified Sheard as the
driver of the red Impala at the scene of the collision; (2) EMT Rees saw
Sheard’s red Impala approach the intersection and “absolutely could tell” that
the Impala ran the red light, Tr. at 56; (3) EMT Newby also observed the red
Impala speeding through the red light; (4) Reese and Newby observed that the
SUV had the green light; (5) Newby saw the red Impala driven by Sheard
collide with the SUV; (6) Woloshyn was a passenger in the SUV and died as a
result of the injuries he suffered from the collision. The State presented
sufficient evidence to support Sheard’s conviction for operating a vehicle while
intoxicated, causing death. Again, Sheard’s arguments to the contrary are
merely requests that we reweigh the evidence.
Issue Two: Merger of the Four Convictions
[15] Sheard contends that the trial court erroneously merged, rather than vacated,
three of the four counts for which the trial court entered judgments of
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conviction, and the State does not disagree. 3 Merger of two or more guilty
verdicts is an oft-used tool by our trial courts to avoid double jeopardy
violations. E.g., Payton v. State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004), trans.
denied. However, “the trial court’s act of merging, without also vacating, the
convictions is not sufficient” to avoid such violations. Id. “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.
[16] Here, the trial court entered judgments of conviction against Sheard on all four
counts and ordered that counts II, III, and IV be merged with count I. Both
Sheard and the State assert that the trial court’s merger order was based on
double jeopardy concerns. While the trial judge did not mention double
jeopardy or any other reason for its merging of counts II, III, and IV with count
I,4 we agree with the parties that the trial court based the merger on obvious
double jeopardy concerns. However, while the trial court may have intended to
vacate the convictions on counts II, III, and IV, the record remains susceptible
to the conclusion that Sheard stands convicted on those counts, as well as count
I. See Bunch v. State, 697 N.E.2d 1255, 1257 (Ind. 1998). Accordingly, we
3
The State notes on appeal that the trial court did merge all the counts, which would not cure any double
jeopardy issues, if such exist.
4
The Abstract of Judgment and Sentencing Order show only that the convictions on counts II, III, and IV
are “merged,” not vacated. Appellant's App. at 20, 22.
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remand with instructions for the trial court to vacate the convictions on counts
II, III, and IV.
[17] Affirmed and remanded with instructions.
Robb, J., and Crone, J., concur.
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