MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 03 2017, 7:39 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery Haupt Curtis T. Hill, Jr.
Law Office of Jeffery Haupt Attorney General of Indiana
South Bend, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Irwin McNeil Scott, November 3, 2017
Appellant-Defendant, Court of Appeals Case No.
71A05-1706-CR-1225
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1610-F3-64
Brown, Judge.
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[1] Irwin McNeil Scott appeals his sentence for two counts of failure to remain at
the scene of an accident. Scott raises two issues, one of which we find
dispositive and revise and restate as whether his convictions violate double
jeopardy. We reverse and remand.
Facts and Procedural History
[2] On October 12, 2016, police stopped the vehicle in which Scott and two
children were passengers. The driver of the vehicle exited to talk to the police
officer, and Scott, who was intoxicated, moved into the driver’s seat and drove
away. The police attempted to pull him over, but he kept driving for multiple
blocks, crashed into a pole, flipped the vehicle over, and left the scene without
checking if he could aid anyone or waiting for the police to arrive. The two
children each sustained serious bodily injury as a result of the accident.
[3] On October 14, 2016, the State charged Scott with two counts of failure to
remain at the scene of an accident as level 3 felonies and one count of resisting
law enforcement as a level 6 felony. On March 27, 2017, the court held a
hearing, and Scott pled guilty as charged without a plea agreement. When
asked by the court what differentiated the two counts of failure to remain at the
scene of an accident, the prosecutor indicated that there were two separate
victims.
[4] On May 10, 2017, the court held a sentencing hearing. It sentenced Scott to
consecutive terms of ten years for each count of failure to remain at the scene of
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an accident and two years for resisting law enforcement, for an aggregate
sentence of twenty-two years.
Discussion
[5] The issue is whether Scott’s convictions violate double jeopardy principles.
Scott argues that his sentences on his convictions for failure to remain at the
scene of an accident violate his protections against double jeopardy. The State
concedes that Scott is correct that both convictions for leaving the scene
constitute one offense under the 2016 version of the statute1 and that this case
should be remanded to resolve the double jeopardy issue. The State asserts that
“because [Scott] left the scene of only one accident one conviction should be
vacated.” Appellee’s Brief at 11.
[6] Article 1, Section 14 of the Indiana Constitution provides: “No person shall be
put in jeopardy twice for the same offense.” “[T]wo or more offenses are the
“same offense” in violation of the Indiana Double Jeopardy Clause if, “with
respect to either the statutory elements of the challenged crimes or the actual
evidence used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.” Sistrunk v. State,
36 N.E.3d 1051, 1053 (Ind. 2015) (quoting Richardson v. State, 717 N.E.2d 32,
49 (Ind. 1999)). In addition to the protections afforded by the Indiana Double
1
The State notes that the legislature has since amended the leaving the scene statute to allow for separate
offenses and consecutive sentences for multiple victims. See Appellee’s Brief at 10.
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Jeopardy Clause, the Indiana Supreme Court “has ‘long adhered to a series of
rules of statutory construction and common law that are often described as
double jeopardy, but are not governed by the constitutional test set forth in
Richardson.’” Id. (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)).
“Among these is the rule that precludes a ‘[c]onviction and punishment for an
enhancement of a crime where the enhancement is imposed for the very same
behavior or harm as another crime for which the defendant has been convicted
and punished.’” Id. at 1053-1054 (quoting Guyton v. State, 771 N.E.2d 1141,
1143 (Ind. 2002) (emphasis added) (quoting Richardson, 717 N.E.2d at 56
(Sullivan, J., concurring))).
[7] Under double jeopardy analysis, Scott cannot be convicted of and sentenced for
both charges of failure to remain at the scene. See Nield v. State, 677 N.E.2d 79,
82 (Ind. Ct. App. 1997) (remanding with instructions to dismiss one of the
convictions for leaving the scene of an accident where the defendant struck two
separate motorcycles but the impacts were nearly simultaneous and were the
result of the same improper turn); see also Wood v. State, 999 N.E.2d 1054, 1066
(Ind. Ct. App. 2013) (holding that the defendant’s act of leaving the scene of a
boating accident can support only one conviction under Ind. Code § 14-15-4-1
even though two people died and another was injured), trans. denied, cert. denied,
135 S. Ct. 250 (2014). We vacate Scott’s conviction and sentence for failure to
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remain at the scene of an accident under Count II and remand for
resentencing.2
Conclusion
[8] For the foregoing reasons, we vacate Scott’s conviction of failure to remain at
the scene of an accident under Count II and remand for resentencing on the
remaining convictions.
[9] Reversed and remanded.
Najam, J., and Kirsch, J., concur.
2
Because we hold Scott’s convictions constitute double jeopardy and remand for the court to resentence him,
we need not address Scott’s argument that his sentence is inappropriate.
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