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Berg v. State

Court of Appeals of Indiana

October 30, 2015

Brooks Berg, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 507

          Appeal from the Hendricks Superior Court. The Honorable Mark A. Smith, Judge. Trial Court Cause No. 32D04-1406-FD-534.

         ATTORNEY FOR APPELLANT: Paula M. Sauer, Danville, Indiana.

         ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Karl M. Scharnberg, Deputy Attorney General, Indianapolis, Indiana.

         Najam, Judge. Kirsch, J., and Barnes, J., concur.

          OPINION

Page 508

          Najam, Judge.

         Statement of the Case

         [¶1] Brooks Berg appeals his convictions for operating while intoxicated, as a Class D felony, and reckless driving, as a Class B misdemeanor.[1] Berg raises a single issue for our review, namely, whether the State violated his double jeopardy rights under Richardson v. State, 717 N.E.2d 32 (Ind. 1999), when it used the evidence it had presented to the jury to support the reckless-driving charge to demonstrate the endangerment element of the operating-while-intoxicated charge. The State concedes on appeal that this use of the evidence resulted in a violation of Berg's rights under the Richardson actual evidence test.

         [¶2] We reject Berg's argument and the State's concession, and we hold that the trial court did not violate Berg's double jeopardy rights when it entered its judgment of conviction against him for both operating while intoxicated, as a Class D felony, and reckless driving, as a Class B misdemeanor. Thus, we affirm Berg's convictions.

         Facts and Procedural History

         [¶3] In the early morning hours of June 21, 2014, Plainfield Police Department Sergeant Mike Mason observed a vehicle--later determined to have been operated by Berg--traveling at fifty-nine miles per hour in a forty-five miles per hour zone. Sergeant Mason initiated a traffic stop, and Berg decelerated and pulled the vehicle into a parking lot. But, as Sergeant Mason pulled up behind him, Berg " accelerate[d] hard" and returned to the main road, fleeing from Sergeant Mason. Tr. at 301.

         [¶4] Two other officers joined the chase. Berg accelerated to 130 miles per hour, but when he turned onto a " very bumpy county road" he decelerated to between eighty and ninety miles per hour. Id. at 307. Conditions became " extremely thick" with fog, it was " extremely hard to see" if anyone else might have been on the roads, and Berg was " bouncing all over the roads," " going from the left side of the road to the right side of the road, speeding up [and] slowing down." Id. at 308-09. Eventually, Berg attempted to navigate a right turn but lost control of the vehicle. Berg " crosse[d] the oncoming traffic," went " down into [a] ditch . . . on the left side of the road[,] c[a]me[] back up the other side of the ditch[,] hit[] a very large tree[,] and then launche[d]" the vehicle such that it became " inverted and land[ed] in the middle of the road . . . ." Id. at 309-10. Officers then arrested Berg. A friend of Berg's, Coty Bedwell, was in the vehicle's passenger seat. Neither occupant was seriously injured.

         [¶5] On June 23, the State charged Berg with numerous offenses. It later amended its charges to allege, in relevant part, as follows: resisting law enforcement, as a Class D felony based on Berg's use of a vehicle to commit the offense; operating while ...


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