Attorneys for Appellant Attorneys for Appellee
Frederick Vaiana Steve Carter
Indianapolis, Indiana Attorney General of
Indiana
Andrew A. Kobe
Deputy Attorney General
Indianapolis, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 29S05-0401-CR-27
Robert Henke,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Hamilton Superior Court, No. 29D04-0012-CM-7823
The Honorable J. Richard Campbell, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 29A05-0211-
CR-554
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January 15, 2004
Boehm, Justice.
Robert Henke was charged in Hamilton Superior Court with operating a
vehicle while intoxicated, a Class A misdemeanor; operating a vehicle with
a blood alcohol content of .15 or more, a Class A misdemeanor; and
operating a vehicle with a blood alcohol content of .08 or more, a Class C
misdemeanor. All charges were based on Henke’s driving in the eastbound
lanes of 96th Street where that street forms the boundary between Marion
and Hamilton Counties. The parties agree for the purposes of this appeal
that the eastbound lanes are in Marion County and that Henke drove only in
Marion County.
Indiana Code section 35-32-2-1(i) (2000) provides for venue in either
county when an offense is committed on a highway sharing the common border.
Henke moved to dismiss on the ground that the statute was unconstitutional
as applied to him. Henke argued that when the evidence is clear that the
defendant never crossed the border into another county, the Indiana
Constitution limits venue to the county where driving occurred. The trial
court denied the motion, holding that the venue statute conferred venue on
Hamilton County. On interlocutory appeal, the Court of Appeals reversed,
relying upon its opinion in Baugh v. State, 781 N.E.2d 1141 (Ind. Ct. App.
2002), which involved virtually identical facts. In Baugh, the Court of
Appeals agreed that the portion of the venue statute granting concurrent
jurisdiction could not constitutionally confer venue over crimes where the
evidence pointed to only one county as the location of the offense.
In a companion case today, Baugh v. State, __ N.E.2d __ (Ind. 2004),
we hold that concurrent venue is constitutional for offenses committed by
operating a vehicle on a highway forming the boundary between two counties.
We grant transfer, and for the reasons given in Baugh, affirm the trial
court in this interlocutory appeal and remand for proceedings consistent
with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.