MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Mar 07 2017, 9:54 am
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
Susan D. Rayl Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC Attorney General of Indiana
Indianapolis, Indiana Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ivan Jones, March 7, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1609-CR-2082
v. Appeal from the Marion Superior
Court
State of Indiana,
The Honorable Peter Nugent,
Appellee-Plaintiff. Judge Pro-Tempore
Trial Court Cause No.
49G06-1510-F6-36148
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017 Page 1 of 5
[1] Ivan Jones appeals his convictions for operating a vehicle while intoxicated
with an ACE of .15 or more with a prior conviction and operating a vehicle
while intoxicated. Jones raises one issue which we restate as whether the
convictions violate double jeopardy principles. We affirm in part, vacate in
part, and remand with instructions.
Facts and Procedural History
[2] On October 12, 2015, Indianapolis Metropolitan Police Officer Tiffany Lamle
responded to a call from Jones who was concerned about his neighbors
harassing him. When she arrived at Jones’s residence, Officer Lamle observed
that Jones smelled of alcohol and had bloodshot eyes, slurred speech, and
almost an unsteady balance, and she believed Jones was intoxicated and told
him not to exit his home and not to drive his moped. Officer Lamle went back
to her vehicle, heard Jones’s moped start a couple of minutes later, and
observed in her rearview mirror Jones drive the moped around his house and
down the street. Officer Lamle turned her vehicle around, traveled in the
direction Jones had been driving, noticed Jones’s moped parked in front of a
liquor store, and parked her vehicle alongside his moped and waited. A couple
of minutes later, Jones exited the store and went to mount his moped, Officer
Lamle observed he was “extremely wobbly while doing so,” and when Jones
turned toward Officer Lamle’s vehicle and saw her, he said “Oh f---.”
Transcript at 28. Officer Lamle transported Jones to Indianapolis Metropolitan
Police Officer Adam Jones for a DUI investigation, and Officer Jones observed
that Jones had glassy, bloodshot eyes and the smell of alcohol on his breath.
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Jones failed the horizontal gaze nystagmus test and the nine-step walk and turn
test. Jones consented to a certified chemical test, and the result of the test was
0.172 grams of alcohol per 210 liters of breath.
[3] The State charged Jones with Count I, operating a vehicle with an ACE of .15
or more with a prior conviction as a level 6 felony; and Count II, operating a
vehicle while intoxicated with a prior conviction as a level 6 felony. 1 A jury
found Jones guilty of operating a vehicle with an ACE of .15 or more as a class
A misdemeanor in Count I and operating a vehicle while intoxicated as a class
C misdemeanor in Count II. Jones stipulated that he had a prior conviction for
driving a vehicle while intoxicated. The court sentenced Jones to two years for
each of the convictions to be served concurrently. 2
Discussion
[4] The issue is whether Jones’s convictions violate double jeopardy principles.
Jones argues that his convictions violate the double jeopardy clause of the
Indiana Constitution under the actual evidence test, the same set of evidentiary
facts proved the essential elements of both crimes, and therefore one of his
1
The State’s original information charged Count I as a class A misdemeanor and Count II as a class C
misdemeanor, and its amended information included an allegation under a second part for each count that
the offense was a level 6 felony and alleging that Jones had a prior conviction for operating a vehicle while
intoxicated.
2
The court asked Jones if he understood that, “by stipulating to the prior that the enhanced penalty is it
would make each of them a level 6 felony,” and Jones responded affirmatively. Transcript at 150. Although
the court’s sentencing order shows Jones was sentenced to two years under both Counts I and II, the
sentencing order and the chronological case summary appear to indicate that Count II was entered as a class
C misdemeanor. Because we vacate Count II, we need not address this discrepancy.
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convictions must be vacated. The State concedes that Jones’s convictions
violate double jeopardy, notes that both incidents are based on the exact same
incident of operating a vehicle, and states that, to remedy the error, this court
should remand with instructions for the trial court to vacate one of Jones’s
convictions.
[5] Article 1, Section 14 of the Indiana Constitution provides that “[n]o person
shall be put in jeopardy twice for the same offense.” Indiana’s double jeopardy
clause was intended to prevent the State from being able to proceed against a
person twice for the same criminal transgression. Wharton v. State, 42 N.E.3d
539, 541 (Ind. Ct. App. 2015) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind.
1999)). A two-part test was developed for determining if multiple convictions
are permissible—the statutory elements test and the actual evidence test. Id.
Under the actual evidence test, the “actual evidence presented at trial is
examined to determine whether each challenged offense was established by
separate and distinct facts.” Id. (citing Richardson, 717 N.E.2d at 53).
[6] Jones’s convictions violate the actual evidence test. Officer Lamle observed
Jones operate a vehicle after noticing that he appeared intoxicated, Jones failed
the horizontal gaze nystagmus and the nine-step walk and turn tests, and he
agreed to a certified chemical test which revealed he had .172 grams of alcohol
per 210 liters of breath. Both offenses arose from the same actions, on the same
date, and at the same location. Under double jeopardy analysis, Jones cannot
be convicted of and sentenced for both offenses. See Wharton, 42 N.E.3d at 541
(holding that the defendant’s convictions for operating a vehicle while
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017 Page 4 of 5
intoxicated with a prior conviction and operating a vehicle with an ACE of .08
or more with a prior conviction as level 6 felonies violated the actual evidence
test); West v. State, 22 N.E.3d 872, 874-875 (Ind. Ct. App. 2014) (holding that
the defendant’s convictions for operating while intoxicated and operating with a
blood alcohol content of .15 or more as class D felonies constituted a double
jeopardy violation), trans. denied. When two convictions are found to
contravene Indiana double jeopardy principles, one of the convictions must be
vacated, and in the interest of efficient judicial administration, the reviewing
court will make this determination. Wharton, 42 N.E.3d at 541 (citation
omitted). We vacate Jones’s conviction and sentence for operating a vehicle
while intoxicated under Count II. See id. (vacating one of the defendant’s
convictions and remanding to the trial court to amend its order); West, 22
N.E.3d at 875 (remanding with instructions to vacate one of the defendant’s
convictions).
Conclusion
[7] For the foregoing reasons, we affirm Jones’s conviction for operating a vehicle
with an ACE of .15 or more with a prior conviction as a level 6 felony under
Count I, vacate his conviction and sentence for operating a vehicle while
intoxicated under Count II, and remand to the trial court to amend its order.
[8] Affirmed in part, vacated in part, and remanded with instructions.
Vaidik, C.J., and Bradford, J., concur.
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