Johnson v. State , 1990 Ind. App. LEXIS 478 ( 1990 )

HOFFMAN, Presiding Judge.

Defendant-appellant Edwin Russell Johnson, III, appeals his conviction of operating a vehicle with a blood alcohol content of .10% or more while having a prior driving while intoxicated in violation of IND. CODE § 9-11-2-3 (1988 Ed.), a Class D felony.

The facts relevant to this appeal disclose that on August 16, 1988, defendant was arrested and charged with driving while intoxicated and driving while intoxicated with a previous driving while intoxicated offense. Defendant was convicted by a jury of operating with a blood alcohol content of .10% or more but acquitted of driving while intoxicated. Defendant was sentenced for operating with a blood alcohol content of .10% or more while having a prior driving while intoxicated conviction in violation of IND.CODE § 9-11-2-3, a Class D felony.

One issue is dispositive of this appeal: whether the defendant could be convicted of a lesser included offense not charged in the information.

The charging information for driving while intoxicated, a Class A misdemeanor (IND.CODE § 9-11-2-2), provided in relevant part that defendant did “unlawfully operate a motor vehicle ..., while intoxicated, then and there being contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Indiana.”

Defendant was also charged by information with driving in violation of IND.CODE § 9-11-2-1 or 9-11-2-2 with previous conviction, a Class D felony, pursuant to IND. CODE § 9-11-2-3. The charging information read in pertinent part that defendant

“did violate IC 9-11-2-1 (Operate Vehicle with .10% or More BAC, Class C Misdemeanor) on or about the ___ day_ 19_or IC 9-11-2-2 (Operating a Vehicle While Intoxicated, Class A Misdemeanor) on or about the 16th day of August, 1988 when he had a previous conviction of operating while intoxicated which occurred within five years immediately preceding the occurrence of the violation, to wit: 5-18-87, then and there being contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Indiana.”

The date following the reference to the BAC offense, IND.CODE § 9-11-2-1, had originally been written in the spaces but then crossed out, leaving only the date following the reference to the DWI offense, IND.CODE § 9-11-2-2.

Appellant claims that he was only charged with driving while intoxicated, a Class A misdemeanor, and the felony enhancement charge due to a prior offense within five years. Thus, he argues that his due process rights were violated because he was convicted of a BAC offense for which he was not placed on notice.

The State argues, in response, that appellant was placed on notice of the BAC offense in the information charging him with driving in violation of IND.CODE § 9-11-2-1 or 2 with a previous conviction. However a review of the charging information shows that the date following the reference to the BAC offense was deleted so that only the date following the reference to the DWI offense remained. It appears from this charging information that defendant was only being charged with a violation of IND.CODE § 9-11-2-2, the DWI statute, with a previous conviction. Furthermore, a separate charging information was filed only for a DWI offense and not for a BAC offense.

This Court has held that a BAC offense is a lesser included offense of DWI. Sering v. State (1986), Ind.App., 488 N.E.2d 369. However, if the prosecutor does not insert additional language showing an intent to charge any lesser offenses, the information must be held to charge only the greater offense. Slayton v. State (1984), Ind.App., 471 N.E.2d 1154. In Sills v. State (1984), Ind., 463 N.E.2d 228, the court upheld the trial court’s refusal to give defendant’s instructions on lesser included offenses. The defendant was charged with murder and had wanted instructions on the lesser offenses of involuntary manslaughter and battery given to the jury. The court held that defendant was not entitled to these instructions because the information charging him with murder was insufficient to charge him with any lesser offenses. The court in Sills quoted its decision in Jones v. State (1982), Ind., 438 N.E.2d 972, in which it stated, “the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime(s) with which which a defendant will be charged.” Id. at 975. When the State seeks only to charge the greater offense, injecting a lesser offense would allow the jury to return a compromise verdict. Sills, supra, at 235.

Clearly in this case the prosecutor sought only to charge the defendant with the greater offense, DWI. The prosecutor in the DWI charging information closely tracked the statutory definition of that offense foreclosing any opportunity to convict defendant of the lesser BAC offense.¹ Thus, defendant could not be convicted of the lesser BAC offense. His conviction for operating a vehicle with a blood alcohol content of .10% or more while having a prior driving while intoxicated, a Class D felony, must be reversed,

Reversed

CONOVER, J., concurs. GARRARD, J., dissents with opinion.

1 . The DWI statute provides: "A person who operates a vehicle while intoxicated commits a Class A misdemeanor." IND.CODE § 9-11-2-2 (1988 Ed.).

The relevant portion of the BAC statute reads: "A person who operates a vehicle with ten-hun-dreths percent (0.10%), or more, by weight of alcohol in his blood commits a Class C misdemeanor." IND.CODE § 9-11-2-1 (1988 Ed.).