MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 31 2017, 9:04 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
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
Michael G. Moore Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kahteith Moeseley, October 31, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1705-CR-905
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela Dow
Appellee-Plaintiff Davis, Judge
Trial Court Cause No.
49G16-1604-F6-14580
Crone, Judge.
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Case Summary
[1] Kahteith Moeseley appeals his convictions, following a jury trial, for level 6
felony operating a vehicle while intoxicated (“OWI”) and class C misdemeanor
operating a vehicle with an alcohol concentration equivalent (“ACE”) of 0.08
or more.1 He contends that the State presented insufficient evidence that he
endangered a person to support his level 6 felony OWI conviction. He further
asserts that his two convictions violate double jeopardy principles. Finding the
evidence sufficient, and noting that the State properly concedes that the class C
misdemeanor conviction must be vacated on double jeopardy grounds, we
affirm in part and remand with instructions.
Facts and Procedural History
[2] On April 15, 2016, Indianapolis Metropolitan Police Department (“IMPD”)
Officers Clayton Goad and Carl Clark responded to the scene of a vehicle
accident at the intersection of 42nd Street and Arborcrest Drive in Marion
County. When the officers arrived, they observed the two vehicles that
appeared to have been involved in the accident and several individuals arguing
between the vehicles. Forty-seven-year-old Moeseley told Officer Goad that he
was the driver of one of the vehicles, and that he had passengers in his vehicle.
Officer Goad observed a child inside Moeseley’s vehicle who appeared to be
younger than ten years old. Moeseley stated to Officer Goad that he was
1
Moeseley was also convicted of two counts of class A misdemeanor invasion of privacy. He does not
appeal those convictions.
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stopped at the intersection waiting to turn, and that when he turned, he was
struck by the other vehicle on the passenger side of his vehicle. As Moeseley
spoke to Officer Goad, the officer noticed that Moeseley had glassy, bloodshot
eyes, slurred speech, and unsteady balance. Officer Goad also detected the
odor of alcoholic beverage on Moeseley’s person. Based upon his observations,
as well as his training and experience, Officer Goad believed that Moeseley was
intoxicated. Accordingly, Officer Goad called for the assistance of the “DUI
unit[].” Tr. at 18.
[3] IMPD Officer Nicholas Wroblewski, a member of the “DUI [T]ask [F]orce,”
subsequently arrived at the scene of the accident. Id. at 38. Officer Wroblewski
made contact with Moeseley to investigate “the facts of the crash” and the
“suspected” impaired driver. Id. at 39. Moeseley informed Officer Wroblewski
that his vehicle was stationary in the intersection as he then made a turn, and
the other car hit him. Moeseley stated that he had two passengers in his car.
Officer Wroblewski observed that one of the passengers was a child. Officer
Wroblewski observed that Moeseley exhibited numerous signs of intoxication.
After Moeseley failed all three field sobriety tests administered by Officer
Wroblewski, the officer determined that he had probable cause to “offer
[Moeseley] the chemical test.” Id. at 49. Moeseley consented to the test, and he
was transported to a local hospital for a blood draw. The results of the
chemical test revealed that Moeseley had an alcohol concentration equivalent
of 0.134 grams of alcohol per 100 milliliters of blood. Id. at 80.
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[4] The State charged Moeseley with five counts: level 6 felony neglect of a
dependent; level 6 felony OWI; class C misdemeanor operating a vehicle with
an ACE of 0.08 or more; and two counts of class A misdemeanor invasion of
privacy. The State subsequently dismissed the neglect of a dependent charge.
Following a trial, the jury found Moeseley guilty as charged on the remaining
four counts. The trial court sentenced Moeseley to concurrent sentences on all
four counts, for an aggregate sentence of 545 days, with 365 days suspended to
probation and the remaining time to be served in community corrections. This
appeal ensued.
Discussion and Decision
[5] Moeseley contends that the State presented insufficient evidence to support his
level 6 felony OWI conviction. When reviewing a claim of insufficient
evidence, we neither reweigh the evidence nor assess witness credibility. Bell v.
State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable
inferences drawn therefrom that support the conviction, and will affirm if there
is probative evidence from which a reasonable factfinder could have found the
defendant guilty beyond a reasonable doubt. Id. In short, if the testimony
believed by the trier of fact is enough to support the conviction, then the
reviewing court will not disturb it. Id. at 500.
[6] A person who operates a vehicle while intoxicated commits a class C
misdemeanor. Ind. Code § 9-30-5-2(a). The offense is elevated to a class A
misdemeanor if the person operates a vehicle in a manner that endangers a
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person. Ind. Code § 9-30-5-2(b). The offense is further elevated to a level 6
felony if the person is twenty-one years of age and operated a vehicle in which
at least one passenger was less than eighteen years of age. Ind. Code § 9-30-5-3.
Moeseley concedes that the evidence presented by the State clearly established
that he was over the age of twenty-one and that he operated a vehicle while
intoxicated with a passenger who was less than eighteen years of age. His sole
assertion on appeal is that the State failed to provide sufficient evidence of
endangerment.
[7] To prove that Moeseley operated a vehicle “in a manner that endanger[ed] a
person,” the State had to present evidence “showing that the defendant’s
condition or operating manner could have endangered any person, including
the public, the police, or the defendant.” See Vanderlinden v. State, 918 N.E.2d
642, 644 (Ind. Ct. App. 2009), trans. denied (2010). Endangerment does not
require “a person other than the defendant be in the path of the defendant’s
vehicle or in the same area to obtain a conviction.” Id. at 644-45. However, the
State is required to submit proof of endangerment that goes beyond mere
intoxication. Outlaw v. State, 918 N.E.2d 379, 382 (Ind. Ct. App. 2009), adopted
by 929 N.E.2d 196 (Ind. 2010).
[8] Here, the evidence presented by the State went beyond mere intoxication. In
addition to the evidence of Moeseley’s intoxication, the State presented
evidence that Moeseley was operating a vehicle when a collision occurred. The
evidence indicates that another vehicle struck Moeseley’s vehicle on the
passenger side as Moeseley turned. The jury could reasonably infer that
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Moeseley’s impaired judgment caused him to recklessly turn in front of another
vehicle, resulting in a collision, and thus that his condition or operating manner
could have endangered any person. Moeseley’s assertions to the contrary are
simply a request for us to reweigh the evidence in his favor, and we will not.
The State presented sufficient evidence to support Moeseley’s level 6 felony
OWI conviction.
[9] Having said that, we agree with Moeseley, and the State concedes, that his
convictions for both level 6 felony OWI and the lesser included class C
misdemeanor operating a vehicle with an ACE of 0.08 or more cannot stand
based on double jeopardy principles. See Hornback v. State, 693 N.E.2d 81, 85
(Ind. Ct. App. 1998) (noting that offense of operating a vehicle with a BAC of
.10% or more is lesser included offense of OWI); see also Bass v. State, 75 N.E.3d
1100, 1102 (Ind. Ct. App. 2017) (noting that entry of conviction “for both an
offense and its lesser included offenses” is impermissible under both state and
federal double jeopardy rules). Our review of the sentencing transcript reveals
that the trial court attempted to avoid a double jeopardy violation by merging
the convictions and sentencing Moeseley to concurrent terms. However, it is
well settled that merger of convictions, without vacatur, is insufficient to
remedy a double jeopardy violation. West v. State, 22 N.E.3d 872, 875 (Ind. Ct.
App. 2014), trans. denied (2015). We thus remand with instructions to vacate
the conviction on the lesser-included offense.
[10] In sum, we affirm Moeseley’s level 6 felony OWI conviction and remand with
instructions for the trial court to vacate the lesser conviction and sentence.
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[11] Affirmed in part and remanded with instructions.
Vaidik, C.J., and Mathias, J., concur.
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