FILED
Apr 27 2017, 9:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane Ann Noblitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry D. Bass, April 27, 2017
Appellant-Defendant, Court of Appeals Case No.
03A01-1606-CR-1493
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable Kathleen Tighe
Appellee-Plaintiff. Coriden, Judge
Trial Court Cause No.
03D02-1511-CM-5663
Najam, Judge.
Statement of the Case
[1] Larry D. Bass appeals his convictions for operating a vehicle while intoxicated
(“OWI”), one as a Class A misdemeanor and one as a Class C misdemeanor,
following a bench trial. Bass raises two issues for our review, which we
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 1 of 13
consolidate and restate as whether the trial court violated Bass’s double
jeopardy rights when it entered its judgment of conviction against Bass on both
OWI counts. We conclude that where, as here, the trial court states that the
defendant has been found guilty of multiple counts of OWI, enters a
“judgment” that is not specific as to those counts, and then states that the
counts “merge for purposes of sentencing,” Indiana’s case law requires this
court to remand to the trial court with instructions that it specifically vacate the
lesser offense. Accordingly, we reverse and remand with instructions.
Facts and Procedural History
[2] On December 10, 2014, Joanna Tucker discovered Bass unconscious inside of
his running, but stopped, vehicle in the middle of the intersection of Seventh
Street and Lafayette Avenue in Columbus. Tucker placed Bass’s vehicle in
park. Columbus Police Department Officer Benjamin Goodin arrived
thereafter and “immediately saw” that Bass’s eyes “were bloodshot and glassy”;
that his eyelids “were droopy”; that his “speech was extremely slurred to the
point that he had difficulty formulating a thought or sentence”; and that he
“had very poor balance where he couldn’t stand up unassisted.” Tr. at 37-38.
[3] After medical personnel took Bass to a nearby hospital, Bass consented to a
blood draw. The result of that blood draw demonstrated that Bass had
methadone, oxycodone, and zolpidem in his blood at the time of the traffic
incident. The State then charged Bass with two counts of OWI, one as a Class
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 2 of 13
A misdemeanor (for the alleged endangerment of others1) and one as a Class C
misdemeanor (for operating with a schedule I or II controlled substance in the
body2). At his ensuing bench trial, Bass testified that he had an affirmative
defense to at least the Class C misdemeanor allegation, 3 namely, that he had
prescriptions for each of the controlled substances found in his blood and that
he was “taking them” in the manner that his “doctor [had] told [him] to take
them.” Id. at 50.
[4] The trial court rejected Bass’s alleged defense, stating:
it is a defense . . . that the accused person consumed the
controlled substance under a valid prescription . . . . But it is not
a defense if you are not able to, if taking that medication puts you
in a position where you can cause harm to others. So as to the A
misdemeanor I will find that you are guilty . . . . You know
passing out in the middle of an intersection is a danger. There’s
no doubt about that and[,] although I’ve not seen you[r]
prescriptions, even if I take you at your word, and I will that you
have been prescribed those medications . . . , it’s abundantly clear
to me that you couldn’t have been taking them in the manner in
which they were prescribed on that particular occasion. . . .
[Y]ou were under the influence of those drugs in such a manner
that you ought not to have been behind the wheel of a car. So I
am going to find that you are guilty both of the A and C
misdemeanor[s].
Id. at 57-59.
1
See Ind. Code § 9-30-5-2 (2016).
2
I.C. § 9-30-5-1(c).
3
I.C. § 9-30-5-1(d).
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 3 of 13
[5] Thereafter, the trial court held a sentencing hearing. Following that hearing,
the court entered its written order against Bass. In that order, which is simply
titled “Judgment,” the court acknowledged that Bass had been found guilty on
both counts but then stated that “the counts merge for the purpose of
sentencing.” Appellant’s App. Vol. 2 at 17. The court then ordered Bass to
serve one year, all but ten days of which it suspended to probation. The court
did not specifically delineate on which counts it had entered its judgment of
conviction. This appeal ensued.
Discussion and Decision
[6] On appeal, Bass contends that the trial court violated his double jeopardy rights
when it entered judgment against him for both Class A misdemeanor OWI and
Class C misdemeanor OWI. “Entry of conviction for both an offense and its
lesser-included offenses ‘is impermissible under both state and federal double
jeopardy rules.’” Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015)
(quoting Wentz v. State, 766 N.E.2d 351, 359-60 (Ind. 2002)), trans. denied. And
it is well-established that both “[t]he offense of operating a vehicle with a
controlled substance [as a Class C misdemeanor] . . . and the offense of
operating a vehicle while intoxicated [as a Class A misdemeanor] cannot stand”
under double jeopardy principles when “the presence of the [same controlled
substance] was a fact used by the State to prove” both the Class A and the Class
C misdemeanors. Kremer v. State, 643 N.E.2d 357, 361 (Ind. Ct. App. 1994),
superseded by statute on other grounds, see Vanderlinden v. State, 918 N.E.2d 642,
645 (Ind. Ct. App. 2009), trans. denied; see also Hornback v. State, 693 N.E.2d 81,
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 4 of 13
85 (Ind. Ct. App. 1998) (reversing a Class C misdemeanor OWI conviction as a
lesser included offense to a Class A misdemeanor OWI conviction).
[7] Further, as we have explained:
If a trial court does not formally enter a judgment of conviction
on a [finding] of guilty, then there is no requirement that the trial
court vacate the “conviction,” and merger is appropriate.
Townsend v. State, 860 N.E.2d 1268, 1270 (Ind. Ct. App. 2007)
(quoting Green v. State, 856 N.E.2d 703, 704 (Ind. 2006)).
However, if the trial court does enter judgment of conviction on a [guilty
finding], then simply merging the offenses is insufficient and vacation of
the offense is required. See id.; Green, 856 N.E.2d at 704; Gregory v.
State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (where trial court
entered judgments of conviction on jury’s verdicts of guilty for
dealing and conspiracy, then later merged the convictions for
double jeopardy reasons, such merging without also vacating the
conspiracy conviction was insufficient to cure the double
jeopardy violation).
Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (emphasis added).
[8] Applying Kovats in a subsequent appeal, we held:
Here, in a document captioned “Judgment,” the trial court noted
that [the defendant] was guilty on both counts before determining
that Count II merged into Count I. Under these circumstances,
we conclude the court entered judgment on the convictions, and
merger was insufficient to remedy the double jeopardy violation.
See Kovats[,] 982 N.E.2d [at 415] (determining that the trial court
entered judgment on multiple convictions and that merger
without vacatur was inadequate). We thus remand this case with
instructions to vacate the conviction of Count II, operating with a
blood alcohol content of .15 or more.
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 5 of 13
West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied.
[9] The same is true here. In a document captioned “Judgment,” the trial court
acknowledged that Bass had been found guilty of both the Class A
misdemeanor and the Class C misdemeanor before then declaring that the two
counts merged for purposes of sentencing. Appellant’s App. Vol. 2 at 17. This
was not a sufficient remedy to the apparent double jeopardy concern. West, 22
N.E.3d at 875. Indeed, the State concedes this issue on appeal. Accordingly,
we reverse and remand with instructions to vacate Bass’s conviction for the
Class C misdemeanor OWI.
[10] We briefly note that Bass also argues on appeal that the State failed to present
sufficient evidence to support his conviction for Class C misdemeanor OWI. In
particular, Bass asserts that his testimony demonstrated an affirmative defense
under Indiana Code Section 9-30-5-1(d), regarding consumption of a controlled
substance under a valid prescription. But, as explained above, we hold that
Bass’s conviction for Class C misdemeanor OWI is to be vacated; as such, his
challenge to the sufficiency of the evidence underlying a guilty finding on a
Class C misdemeanor on which there has been no proper judgment of
conviction is, at best, not yet ripe for review. See Carter v. State, 750 N.E.2d 778,
781 (Ind. 2001) (concluding that “[t]here is no particular reason to order a trial
court to vacate” a guilty finding on which there is no judgment of conviction).
And Bass does not assert that his affirmative defense argument is equally
applicable to his Class A misdemeanor conviction, which required the State to
show that Bass had operated his vehicle in a manner that endangered a person.
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 6 of 13
See I.C. § 9-30-5-2(b). Indeed, Bass limits his affirmative-defense argument to
his purported Class C misdemeanor conviction, and the State expressly relies
on that limitation in responding to Bass’s arguments on appeal. Thus, because
Bass did not argue on appeal that such an affirmative defense was applicable to
the Class A misdemeanor OWI charge, we do not consider it. See Ind.
Appellate Rule 46(A)(8)(a).
[11] In sum, we reverse Bass’s conviction for Class C misdemeanor OWI and
remand with instructions for the trial court to vacate that conviction.
[12] Reversed and remanded with instructions.
Bailey, J., concurs.
May, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 7 of 13
IN THE
COURT OF APPEALS OF INDIANA
Larry D. Bass,
Appellant-Defendant,
v. Court of Appeals Case No.
03A01-1606-CR-1493
State of Indiana,
Appellee-Plaintiff.
May, Judge, dissenting.
[13] I would address Bass’s statutory construction argument on the merits and
vacate his guilty finding of Class C misdemeanor OWI, rendering moot the
double jeopardy issue on which the majority relies. Accordingly, I dissent.
[14] The Class C misdemeanor OWI for which Bass was found guilty required only
that he “operate[d] a vehicle with a controlled substance listed in schedule I or
II of IC 35-48-2 or its metabolite” in his body. Ind. Code § 9-30-5-1(c). The
legislature also created a statutory defense to this version of OWI: “It is a
defense to subsection (c) that the accused person consumed the controlled
substance under a valid prescription or order of a practitioner (as defined in IC
35-48-1) who acted in the course of the practitioner’s professional practice.”
Ind. Code § 9-30-5-1(d).
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 8 of 13
[15] At the conclusion of Bass’s bench trial, the trial court stated:
All right Mr. Bass the statute says . . . a person who operates a
vehicle with a controlled substance listed in schedule I or II or it’s
[sic] metabolite in the person’s body commits a [C]lass C
misdemeanor and it goes on further to say it is a defense to
subsection C that the accused person consumed the controlled
substance under a valid prescription or order of a practitioner
who acted in the course of the practitioner’s professional practice.
But it is not a defense if you are not able to, if taking that
medication puts you in a position where you can cause harm to
others. So as to the A misdemeanor I will find that you are guilty
of operating under the influence, that you were intoxicated and it
was in a manner in which a person was endangered. You know
passing out in the middle of an intersection is a danger. There’s
no doubt about that and although I’ve not seen your prescriptions,
even if I take you at your word, and I will that you have been prescribed
those medications the condition that you were in is a condition that
even though you may have prescriptions for those medications,
it’s abundantly clear to me that you couldn’t have been taking
them in the manner in which they were prescribed on that
particular occasion. If you had been on those drugs for three
months up to that point and had not had any issues, based upon
the officer’s testimony, the witness’s testimony who stopped to
assist you, you were under the influence of those drugs in such a
manner that you ought not to have been behind the wheel of a
car. So I am going to find that you are guilty both of the A and C
misdemeanor.
(Tr. at 57-58) (emphasis added).
[16] Bass argues he cannot be guilty of the Class C misdemeanor because the trial
court found Bass had “been prescribed those medications[,]” (id. at 58), which
Bass claims is the equivalent of finding the medications were “consumed . . .
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 9 of 13
under a valid prescription” as is required for the statutory defense. Ind. Code §
9-30-5-1(d). However, the remainder of the trial court’s statement – “you
couldn’t have been taking them in the manner in which they were prescribed on
that particular occasion,” (id. at 58) – indicates the trial court believed the
statutory phrase “consumed . . . under a valid prescription” meant Bass could
not rely on the statutory defense unless Bass proved he had taken the
medications in accordance with the instructions provided on the valid
prescriptions.
[17] Bass’s argument raises a question of statutory construction,4 “which is a matter
of law and is reviewed de novo.” Suggs v. State, 51 N.E.3d 1190, 1193 (Ind.
2016).
When construing a statute, our primary goal is to ascertain the
legislature’s intent. To discern that intent, we look first to the
statutory language itself and give effect to the plain and ordinary
meaning of the statutory terms. If a statute is unambiguous, that
is, susceptible to but one meaning, we must give the statute its
clear and plain meaning. However, if a statute admits of more
than one interpretation, then it is ambiguous; and we thus resort
to rules of statutory interpretation so as to give effect to the
legislature’s intent. For example, we read the statute as a whole,
avoiding excessive reliance on a strict literal meaning or the
4
The State did not respond to Bass’s statutory construction argument. In such a circumstance, an appellate
court looks only to see whether the trial court committed prima facie error, which is error at first glance. See
Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct. App. 2002) (failure to respond to an issue is akin to failing to file
a brief; for claimant to succeed, he need only establish prima facie error). An appellate court may not
construct arguments on the appellee’s behalf. See Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004)
(if the appellate court constructs argument, it abdicates its role as “impartial tribunal”).
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 10 of 13
selective reading of individual words. And we seek to give a
practical application of the statute by construing it in a way that
favors public convenience and avoids an absurdity, hardship, or
injustice. Further, criminal statutes must be strictly construed
against the State, and may not be enlarged beyond the fair
meaning of the language used . . . .”
Id. at 1193-94 (internal citations and quotations omitted).
[18] At issue is the meaning of the phrase “consumed . . . under a valid prescription”
as found in Indiana Code Section 9-30-5-1(d). The trial court interpreted that
phrase to mean “consumed in accordance with a valid prescription,” and Bass
argues the phrase means “had a valid prescription for the medications
consumed.” Because the meaning of that phrase is ambiguous, it should be
construed in a way that gives effect to the legislature’s intent while also
avoiding “absurdity, hardship, or injustice.” Suggs, 51 N.E.3d at 1194.
[19] Chapter 5 of Indiana Code Article 9-30 is denominated “Operating a Vehicle
While Intoxicated.” Section 1 of that Chapter defines three crimes, and the first
two of those are versions of OWI based on the amount of alcohol found in a
driver’s breath or blood. See Ind. Code § 9-30-5-1(a) (defining alcohol
concentration equivalent of .08 to .15 as a Class C misdemeanor) and Ind.
Code § 9-30-5-1(b) (defining alcohol concentration equivalent at or above .15 as
a Class A misdemeanor). The alcohol concentration equivalents used to define
those crimes were established, and later modified, based on research conducted
to determine the impact of alcohol – a substance that is legal to possess and
consume – on a person’s ability to drive.
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 11 of 13
[20] The third crime defined in Section 1, in contrast, criminalizes driving as
“intoxicated” if a person has any amount of a schedule I or II controlled
substance, or its metabolite, in his or her body. See Ind. Code § 9-30-5-1(c).
The State is not required to prove, for purposes of a conviction under that
definition, that a driver was intoxicated or that the amount of metabolite in the
person’s blood might or did have had any impact whatsoever on the person’s
ability to drive. Thus, the legislature defined the crime so broadly that it
criminalizes legal behavior – driving in a manner that does not endanger
anyone after consumption of medication for which one has a valid prescription.
Because we are to construe criminal statutes against the State, see Suggs, 51
N.E.3d at 1194, I would interpret the defense provided in subsection (d)
broadly, as a straightforward attempt by the legislature to protect citizens who
legally possess prescription medications from the embarrassment of facing
criminal proceedings for consuming those prescriptions. Thus, I agree with
Bass that, for purposes of Indiana Code Section 9-30-5-1(d), “consumed . . .
under a valid prescription” means simply “had a valid prescription.”
[21] After all, if a person drives while intoxicated on a schedule I or II controlled
substance – regardless whether that driver had a valid prescription or obtained
the drug illegally – the State’s remedy is to convict that person of driving while
intoxicated under Indiana Code Section 9-30-5-2, rather than under Indiana
Code Section 9-30-5-1. And, that is precisely what the State was able to do in
this case, as it obtained a Class A misdemeanor conviction of Bass for driving
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 12 of 13
while intoxicated in a manner that endangered a person. See Ind. Code § 9-30-
5-2(b).
[22] Thus, I would hold the trial court erred when it both accepted that Bass had
valid prescriptions for the drugs found in his body and found Bass guilty of
operating a vehicle with those substances in his body under Indiana Code
Section 5-30-5-1(c). As such, I would reverse the court’s guilty finding as to the
Class C misdemeanor and remand for the court to correct its record to indicate
Bass was acquitted of that charge. Accordingly, I dissent.5
5
I acknowledge the majority’s vacation of Bass’s Class C misdemeanor conviction on double jeopardy
grounds renders moot at present the statutory construction argument on which I write. However, the
majority’s resolution of Bass’s appeal leaves the finding of guilt as to that Class C misdemeanor on the
judicial record, such that if Bass’s Class A misdemeanor conviction were overturned at some later date, the
trial court could again enter a judgment of conviction on that Class C misdemeanor. See Carter v. State, 750
N.E.2d 778, 781 n.9 (Ind. 2001) (noting court should not vacate verdicts underlying lesser-included offenses
not reduced to judgment so that those findings remain on the record if conviction of greater offense is ever
overturned). Because I believe Bass’s Class C misdemeanor conviction is impermissible as a matter of law, I
cannot concur with the majority’s decision to side-step Bass’s statutory-construction argument.
Court of Appeals of Indiana | Opinion 03A01-1606-CR-1493 | April 27, 2017] Page 13 of 13