Wadle v. State

          Appeal from the Fayette Superior Court The Honorable J. Steven Cox, Special Judge Trial Court Cause No. 21D01-1511-F3-912

          ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

          MATHIAS, JUDGE.

         [¶1] Following a jury trial in Fayette Superior Court, Jordan B. Wadle ("Wadle") was convicted of Level 3 felony leaving the scene of an accident, Level 5 felony operating a vehicle while intoxicated ("OWI") causing serious bodily injury, Level 6 felony OWI endangering a person, and Class C misdemeanor operating a vehicle with an alcohol concentration equivalent ("ACE") of 0.08 or more.^[1]On appeal, Wadle contends that his convictions for leaving the scene of an accident and driving while intoxicated constitute impermissible double jeopardy.

         [¶2] We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶3] On November 12, 2015, the victim in this case, Charles Woodward ("Charles") and his wife Nancy went to a bar in Connersville, Indiana with Charles's brother Ed and Ed's wife Nisa. While Nisa spoke with a friend at the bar, Wadle smacked her back. When Nisa objected, Wadle stated that the next time he smacked Nisa, he would smack her "lower," apparently referring to her buttocks. Tr. Vol. I, p. 114. Nisa responded that her husband Ed would not like it if Wadle smacked her bottom, which prompted Wadle to state that he was not afraid of Nisa's husband and would beat him up. At some point thereafter, Nisa informed Ed of Wadle's behavior and comments. Ed went outside to the parking lot to confront Wadle as Wadle prepared to leave. Charles, seeing that his brother was upset, followed Ed outside.

         [¶4] When Charles went outside, he saw Ed standing near a group of people that included a now-shirtless Wadle. Neither Charles nor anyone else struck Wadle, but Wadle attacked Charles by hitting and kicking him. Wadle then got into his car and began to back his car out of the parking lot, driving in reverse through the group of people that had gathered. Wadle then drove his car at Charles, who had turned to re-enter the bar. Wadle struck Charles with his car, knocking him to the ground. Charles attempted to get back up, but Wadle struck him again, knocking him underneath the guardrail near the outside wall of the bar. Wadle drove away, and Ed telephoned 911.

         [¶5] Local police then began to look for Wadle and soon spotted him a few miles outside of Connersville. The police initiated a traffic stop and noted the smell of alcohol coming from Wadle. They also noticed that he had bloodshot eyes, slurred speech, and was unsteady on his feet. The police took Wadle to a hospital for a blood draw, which revealed that Wadle's blood alcohol level was 0.14.

         [¶6] As a result of being hit by Wadle's car, Charles suffered serious injuries. His skull was fractured, and he had bleeding on the brain. Charles had to undergo surgery that involved the removal of a portion of his skull and the insertion of a metal plate. He also sustained broken ribs, which necessitated two surgeries. Charles was placed in an induced coma and spent a total of sixty days in the hospital and twenty-one additional days at a rehabilitation center.

         [¶7] On November 16, 2015, the State charged Wadle with Count I, Level 3 felony aggravated battery; Count II, Level 3 felony leaving the scene of an accident; Count III, Level 6 felony OWI causing serious bodily injury; Count IV, Class A misdemeanor OWI endangering a person; and Count V, Class A misdemeanor operating a motor vehicle with an ACE of 0.15 or more. On March 1, 2018, the State filed amendments to the charging information alleging that Wadle had a previous conviction for OWI, thereby elevating Count III to a Level 5 felony and Count IV to a Level 6 felony. The State also amended Count V to allege that Wadle committed Class C misdemeanor operating a motor vehicle with an ACE of 0.08 or more but also filed a Part II to this count, elevating the charge to a Level 6 felony based on the prior conviction.

         [¶8] A bifurcated jury trial took place on March 12-13, 2018. At the conclusion of the first phase of the trial, the jury acquitted Wadle on Count I, but found him guilty on the remaining counts. Specifically, the jury found Wadle guilty on Count II as a Level 3 felony, Count III as a Level 6 felony, Count IV as a Class A misdemeanor, and Count V as a Class C misdemeanor. In the second phase of the trial, Wadle admitted that he had a prior conviction for OWI and pleaded guilty to the enhancements of the charges that were based on his prior conviction.

         [¶9] On May 16, 2018, the trial court sentenced Wadle as follows: Count II, sixteen years, with two years suspended to probation; Count III, six years, with two years suspended to probation; Count IV, two and one-half years, with two years suspended to probation; and Count V, one year.^[2] The court ordered all sentences to be served concurrently. Wadle now appeals.

         I. The Actual Evidence Test

         [¶10] Wadle claims that his convictions for OWI and leaving the scene of an accident constitute impermissible double jeopardy under the Indiana Constitution. Article 1, Section 14 of the Indiana Constitution provides that "[n]o person shall be put in jeopardy twice for the same offense." In Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999), our supreme court held that "two or more offenses are the 'same offense' in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, ...