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Bass v. State

Court of Appeals of Indiana

April 27, 2017

Larry D. Bass, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Bartholomew Superior Court The Honorable Kathleen Tighe Coriden, Judge Trial Court Cause No. 03D02-1511-CM-5663

          ATTORNEY FOR APPELLANT Jane Ann Noblitt Columbus, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana.

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Larry D. Bass appeals his convictions for operating a vehicle while intoxicated ("OWI"), one as a Class A misdemeanor and one as a Class C misdemeanor, following a bench trial. Bass raises two issues for our review, which we consolidate and restate as whether the trial court violated Bass's double jeopardy rights when it entered its judgment of conviction against Bass on both OWI counts. We conclude that where, as here, the trial court states that the defendant has been found guilty of multiple counts of OWI, enters a "judgment" that is not specific as to those counts, and then states that the counts "merge for purposes of sentencing, " Indiana's case law requires this court to remand to the trial court with instructions that it specifically vacate the lesser offense. Accordingly, we reverse and remand with instructions.

         Facts and Procedural History

         [¶2] On December 10, 2014, Joanna Tucker discovered Bass unconscious inside of his running, but stopped, vehicle in the middle of the intersection of Seventh Street and Lafayette Avenue in Columbus. Tucker placed Bass's vehicle in park. Columbus Police Department Officer Benjamin Goodin arrived thereafter and "immediately saw" that Bass's eyes "were bloodshot and glassy"; that his eyelids "were droopy"; that his "speech was extremely slurred to the point that he had difficulty formulating a thought or sentence"; and that he "had very poor balance where he couldn't stand up unassisted." Tr. at 37-38.

         [¶3] After medical personnel took Bass to a nearby hospital, Bass consented to a blood draw. The result of that blood draw demonstrated that Bass had methadone, oxycodone, and zolpidem in his blood at the time of the traffic incident. The State then charged Bass with two counts of OWI, one as a Class A misdemeanor (for the alleged endangerment of others[1]) and one as a Class C misdemeanor (for operating with a schedule I or II controlled substance in the body[2]). At his ensuing bench trial, Bass testified that he had an affirmative defense to at least the Class C misdemeanor allegation, [3] namely, that he had prescriptions for each of the controlled substances found in his blood and that he was "taking them" in the manner that his "doctor [had] told [him] to take them." Id. at 50.

         [¶4] The trial court rejected Bass's alleged defense, stating:

it is a defense . . . that the accused person consumed the controlled substance under a valid prescription . . . . But it is not a defense if you are not able to, if taking that medication puts you in a position where you can cause harm to others. So as to the A misdemeanor I will find that you are guilty . . . . You know passing out in the middle of an intersection is a danger. There's no doubt about that and[, ] although I've not seen you[r] prescriptions, even if I take you at your word, and I will that you have been prescribed those medications . . ., it's abundantly clear to me that you couldn't have been taking them in the manner in which they were prescribed on that particular occasion. . . . [Y]ou were under the influence of those drugs in such a manner that you ought not to have been behind the wheel of a car. So I am going to find that you are guilty both of the A and C misdemeanor[s].

Id. at 57-59.

         [¶5] Thereafter, the trial court held a sentencing hearing. Following that hearing, the court entered its written order against Bass. In that order, which is simply titled "Judgment, " the court acknowledged that Bass had been found guilty on both counts but then stated that "the counts merge for the purpose of sentencing." Appellant's App. Vol. 2 at 17. The court then ordered Bass to serve one year, all but ten days of which it suspended to probation. The ...


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