MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Mar 29 2017, 10:58 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Curtis T. Hill, Jr.
Oldenburg, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tin Nung, March 29, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1606-CR-1449
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Duane E.
Appellee-Plaintiff. Merchant, Judge Pro Tempore
Trial Court Cause No.
49G07-1510-CM-37196
Najam, Judge.
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Statement of the Case
[1] Tin Nung appeals his two convictions for public intoxication, each as a Class B
misdemeanor, following a bench trial. Nung raises a single issue for our
review, namely, whether his two convictions are barred by Indiana’s
prohibitions against double jeopardy. We reverse and remand with
instructions.
Facts and Procedural History
[2] On October 19, 2015, Indianapolis Metropolitan Police Department Officer
Michael Gibson observed a vehicle stopped on Wellwood Road in
Indianapolis. The stopped vehicle blocked the southbound lane of travel. Cars
attempting to proceed south on Wellwood Road were forced to drive onto a
curb to avoid the vehicle.
[3] Officer Gibson observed Nung seated alone in the vehicle. The vehicle’s
ignition was off and there was no key in the ignition. Officer Gibson
immediately detected the smell of alcohol coming from Nung.
[4] There had been cold weather that day, including freezing rain at one point, and
Nung was wearing only shorts and a t-shirt. Nung required help getting out of
the car and nearly fell several times once out of the vehicle. Officer Gibson
determined that Nung was intoxicated and arrested him.
[5] On October 19, 2015, the State charged Nung with two counts of public
intoxication: one for endangering himself, see I.C. § 7.1-5-1-3(a)(1), and one for
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endangering the life of another person, see I.C. § 7.1-5-1-3(a)(2). Thereafter, the
court held Nung’s bench trial, at which Officer Gibson testified. In its closing
argument, the State asserted:
[Nung] argued that . . . the endangerment issue was
the . . . weather. The State would like to point out, that was not
our argument. That the vehicle being parked in the roadway
with no key or no way to move the vehicle and [Nung] sitting in
that vehicle, he was a danger both to himself and everybody else
on the roadway . . . .
Tr. at 21. The trial court agreed with the State and found Nung guilty on both
counts, stating:
I’m finding that there was endangerment and I’m going to find
him guilty on both counts. . . . In terms of endangerment, it’s my
understanding that the vehicle was in the roadway itself. . . . I
believe that the officer also articulated that there were other
vehicles in the area . . . . And I believe he articulated that at least
one vehicle drove on the sidewalk to . . . get by the vehicle. And
I think that that is a hazardous condition.
Id. at 23-24. The court then entered judgment against Nung and sentenced him
to an aggregate term of 180 days imprisonment, with all but two days
suspended to probation. This appeal ensued.
Discussion and Decision
[6] Nung asserts on appeal that the entry of two convictions of Class B
misdemeanor public intoxication violated the actual evidence test under
Indiana’s Double Jeopardy Clause. Questions of double jeopardy implicate
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fundamental rights and, as such, may be raised for the first time on appeal, or
even by this court sua sponte. See Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct.
App. 2008). Whether convictions violate double jeopardy is a pure question of
law, which we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct.
App. 2012), trans. denied.
[7] Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,
providing that “[n]o person shall be put in jeopardy twice for the same offense.”
As our supreme court has explained:
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court
concluded that two or more offenses are the same offense in
violation of article 1, section 14 if, with respect to either the
statutory elements of the challenged crimes or the actual evidence
used to obtain convictions, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense. Under the actual evidence test, we examine
the actual evidence presented at trial in order to determine
whether each challenged offense was established by separate and
distinct facts. Id. at 53. To find a double jeopardy violation
under this test, we must conclude that there is “a reasonable
possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have
been used to establish the essential elements of a second
challenged offense.” Id. The actual evidence test is applied to all
the elements of both offenses. “In other words . . . the Indiana
Double Jeopardy Clause is not violated when the evidentiary
facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential
elements of a second offense.” Spivey v. State, 761 N.E.2d 831,
833 (Ind. 2002).
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Our precedents “instruct that a ‘reasonable possibility’ that the
jury used the same facts to reach two convictions requires
substantially more than a logical possibility.” Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
possibility standard “fairly implements the protections of the
Indiana Double Jeopardy Clause and also permits convictions for
multiple offenses committed in a protracted criminal episode
when the case is prosecuted in a manner that insures that
multiple guilty verdicts are not based on the same evidentiary
facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a
“‘reasonable possibility’ turns on a practical assessment of
whether the [fact-finder] may have latched on to exactly the same
facts for both convictions.” Lee, 892 N.E.2d at 1236. We
evaluate the evidence from the [fact-finder’s] perspective and may
consider the charging information, jury instructions, and
arguments of counsel. Id. at 1234.
Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (second-to-last alteration
original).
[8] Nung contends that his convictions fail under the actual evidence test because
the same facts—that he was intoxicated in a vehicle stopped in the middle of a
road—were used to establish both his conviction for public intoxication on the
grounds that he endangered himself and his conviction for public intoxication
on the grounds that he endangered others. The State responds that there is no
double jeopardy violation here because there was separate evidence to support
each conviction. Specifically, the State argues that Nung’s attire given the
weather conditions “created a dangerous situation for himself . . . , which
satisfies the definition of ‘endanger.’” Appellee’s Br. at 10 (citation omitted).
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[9] We reject the State’s reliance on Nung’s attire and the weather conditions,
which the State itself expressly refused to rely on in the trial court. Again,
during its closing argument, the State told the court, which was acting as the
fact-finder, that Nung’s “attire for the weather . . . was not our argument”
regarding “the endangerment issue.” Tr. at 21. And the trial court, in finding
Nung guilty as charged, relied on the State’s argument, finding that the State
demonstrated endangerment by showing that “the vehicle was in the roadway”;
“there were other vehicles in the area”; and “at least one vehicle drove on the
sidewalk” to get around Nung, all of which demonstrated “a hazardous
condition.” Id. at 23-24.
[10] Thus, in light of the State’s explicit argument and the court’s unambiguous
reliance on that argument, there is more than a reasonable possibility that the
trial court relied on the same evidentiary facts to find Nung guilty of both
offenses—there is no question at all that the court relied on the same
evidentiary facts. As such, the entry of judgment on both charges violates
Indiana’s Double Jeopardy Clause.
[11] Accordingly, we must reverse one of Nung’s two convictions. His convictions
were both Class B misdemeanors with concurrent sentences. We reverse
Nung’s conviction on Count II, regarding endangerment to others. We remand
with instructions for the court to vacate that conviction.
[12] Reversed and remanded.
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Riley, J., and Bradford, J., concur.
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