Timothy Malott v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing FILED
the defense of res judicata, collateral
estoppel, or the law of the case.
May 19 2020, 6:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Elizabeth A. Flynn Ellen H. Meilaender
Braje, Nelson & James, LLP Supervising Deputy Attorney
Michigan City, Indiana General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Malott, May 19, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2620
v. Appeal from the LaPorte Superior
Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff. Bergerson, Judge
Trial Court Cause No.
46D01-1810-F4-1114
Bradford, Chief Judge.
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Case Summary
[1] On October 5, 2018, Timothy Malott was involved in a deadly automobile
collision. The driver of the other vehicle died after his vehicle was struck by
Malott’s vehicle. Malott was subsequently charged with numerous offenses
relating to the collision. Following trial, the trial court entered judgment
against Malott for Level 4 felony operating while intoxicated (“OWI”) with a
prior conviction causing death and Level 5 felony reckless homicide. The trial
court sentenced Malott to an aggregate ten-year term of incarceration.
[2] On appeal, Malott contends that (1) the trial court abused its discretion in
admitting certain evidence, (2) the evidence is insufficient to prove that he was
intoxicated at time of the collision, and (3) his convictions and sentences for
both the Level 4 felony OWI offense and Level 5 felony reckless homicide
violate Indiana’s prohibitions against double jeopardy. Upon review, we
conclude that (1) the trial court did not abuse its discretion in admitting the
challenged evidence, (2) the evidence is sufficient to prove that Malott was
intoxicated at the time of the collision, and (3) Malott’s convictions and
sentences for both the Level 4 felony OWI offense and Level 5 felony reckless
homicide violate Indiana’s prohibitions against double jeopardy. As such, we
affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
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[3] Around 2:45 p.m. on October 5, 2018, Malott’s sister drove him to a body shop
in Michigan City to pick up his vehicle. Malott then ran a few other errands
before ending up at the “Three Sheets Bar” at around 4:45 p.m., where he
stayed for about fifteen to twenty minutes. Tr. Vol. V. p. 90. While at the bar,
he consumed “two tall draft[]” beers. Tr. Vol. V p. 91.
[4] At approximately 5:00 p.m., just prior to the collision, Malott was stopped at
the intersection of Franklin Street and Barker Street near downtown Michigan
City, headed southbound on Franklin Street in the left-hand lane. Vehicles
driven by Andrea Garrett and David Johnson were stopped in the lane adjacent
to Malott’s vehicle. When the light turned green, Garrett’s and Johnson’s
vehicles began moving, but Malott’s did not. After a few moments, Malott
revved his engine, “squealed his tires and, like, took off really fast and jetted
past [Garrett].” Tr. Vol. II p. 242. Malott was driving “much faster” than both
Garrett and Johnson, and neither Garrett nor Johnson noticed any other
vehicle behind Malott also driving fast. Tr. Vol. II p. 243.
[5] A few blocks to the south, Anthony Waters was stopped at the intersection of
Franklin Street and Skwiat Legion Avenue. As Waters pulled out to make a
left turn into the northbound lanes of Franklin Street, his vehicle was struck by
Malott’s vehicle. Garrett described the collision, stating that Malott “crashed
into him. He T-boned him.” Tr. Vol. II p. 242. Waters had to be extracted
from his vehicle and died shortly thereafter from “multiple blunt force trauma”
that was “the result of injuries from” the collision. Tr. Vol. III p. 217.
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[6] Michigan City Police Captain Jeff Loniewski arrived on the scene within a
minute or two of the crash. Captain Loniewski described the collision as “so
violent that it actually pushed the entire driver’s compartment laterally,
sideways over into the passenger compartment” making it appear as if “the
driver was the passenger, the front seat passenger.” Tr. Vol. III p. 33. Captain
Loniewski found Malott “seated in the driver’s seat” of his vehicle “with the
door open.” Tr. Vol. III p. 21. Malott told Captain Loniewski that he “was
traveling southbound on Franklin Street in the right hand lane and that he tried
-- was attempting to pass a vehicle that was slower ahead of him, so he moved
to the left lane and at that point [Waters] pulled out in front of him.” Tr. Vol.
III p. 22. Captain Loniewski observed that Malott “was staring straight ahead
when [he] asked him questions and even when he responded to [Captain
Loniewski’s] questions, he continued staring straight ahead as if he was trying
to avoid making eye contact” with Captain Loniewski. Tr. Vol. III p. 22.
[7] Malott initially consented to submit to a chemical test, so Michigan City Police
Lieutenant Greg Jesse transported him to the hospital. Lieutenant Jesse noticed
a faint “sweet, almost chemical like smell” that Lieutenant Jesse recognized as
smelling similar to some forms of alcohol when Malott was in his vehicle. Vol.
III p. 173. Lieutenant Jesse also noticed that Malott slightly dragged one foot
sometimes when walking. Once at the hospital, Malott refused to submit to a
blood test without consulting with his attorney because he was being
“railroaded.” Tr. Vol. III p. 178. Given Malott’s refusal to submit to the test,
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Lieutenant Jesse transported Malott to the police station and began the process
of obtaining a search warrant.
[8] The search warrant was issued at approximately 8:45 p.m., after which
Michigan City Police Sergeant Jason Holaway took Malott back to the hospital
for the administration of the test. Malott’s blood was drawn at 9:28 p.m.,
approximately four hours and twenty minutes after the collision. The test
results subsequently showed that Malott’s blood alcohol content (“BAC”) was
.108 plus or minus .008 grams per 100 milliliters.
[9] It was subsequently determined that at the time of the collision, Malott was
traveling approximately sixty-eight miles per hour, well above the posted thirty-
miles-per-hour speed limit. The subsequent examination of the black box from
Malott’s vehicle showed that his accelerator pedal was still at 100% activation
four seconds before impact and did not reach 0% activation until 1.5 seconds
before impact. His vehicle’s speed continued to increase until two seconds
before impact, when he was traveling at 74.6 miles per hour. A half-second
before impact, Malott was still traveling at 72.7 miles per hour, and at the
moment of impact he was traveling at 68.3 miles per hour. There was no
activation of the brakes until within a half-second before impact.
[10] On October 9, 2018, the State charged Malott with Count I – Level 5 felony
operating a vehicle with a BAC of .08 or greater causing death, Count II –
Level 5 felony OWI causing death, Count III – Level 4 felony operating a
vehicle with a BAC of .08 or greater with a prior conviction causing death, and
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Count IV – Level 4 felony OWI with a prior conviction causing death. On
February 11, 2019, the State amended the charging information to add Count V
– Level 5 felony reckless homicide. A jury trial was held on August 13–16,
2019, at the conclusion of which the jury found Malott guilty of Counts I, II,
and V. Malott subsequently pled guilty to Counts III and IV. On October 17,
2019, the trial court entered judgment of conviction on Count IV and Count V.
[11] In sentencing Malott, the trial court stated as follows:
At trial, the Defendant concocted a story about being involved in
a road rage incident as the reason for his excessive speed on the
most traveled street in Michigan City; especially on an early
Friday evening. Had such an incident actually occurred, surely
the Defendant would have mentioned same to the investigating
police officers at the scene of the collision or at some point later
in the course of the investigation. However, the Defendant never
mentioned this critical piece of information at all during the
course of his multiple opportunities to do so while his blood work
was being taken and analyzed.
The most compelling evidence is that the Defendant was
intoxicated at the time of the accident; that he was driving at
excessive speed and that each of said factors individually and/or
in combination with the other caused the collision that resulted
in the death of Anthony Waters.
Appellant’s App. Vol. III p. 118. The trial court merged the convictions for
Counts I through III with Count IV and imposed a ten-year term of
imprisonment. The trial court also imposed a five-year term of imprisonment
for the reckless homicide conviction. The trial court ordered that the sentences
“shall be served concurrently,” recommended placement in “the Recovery
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While Incarcerated Program,” and indicated that Malott “shall be entitled to
file a Petition to Modify after having completed said program and after serving
at least 5 actual years of said sentence.” Appellant’s App. Vol. III p. 120.
Discussion and Decision
[12] Malott challenges his conviction for Level 4 felony OWI with a prior conviction
causing death, claiming that the trial court abused its discretion in admitting
certain evidence and that the evidence is insufficient to sustain his conviction.
Malott also contends that his convictions and sentences for both the Level 4
felony OWI offense and Level 5 reckless homicide violate the prohibitions
against double jeopardy.
I. Admission of Evidence
[13] Malott contends that the trial court abused its discretion in admitting certain
evidence at trial.
The admission or exclusion of evidence is entrusted to the
discretion of the trial court. We will reverse a trial court’s
decision only for an abuse of discretion. We will consider the
conflicting evidence most favorable to the trial court’s ruling and
any uncontested evidence favorable to the defendant. An abuse
of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before
the court or it misinterprets the law.
Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (internal citations
omitted). “Moreover, the trial court’s ruling will be upheld if it is sustainable
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on any legal theory supported by the record, even if the trial court did not use
that theory.” Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing
Gonser v. State, 843 N.E.2d 947, 950 (Ind. Ct. App. 2006)).
[14] Indiana Evidence Rule 702(a) provides that “[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.” Dr. Shelia Arnold, the Forensic Toxicologist and
Quality Control Coordinator for the Indiana State Department of Toxicology,
testified at Malott’s trial regarding the results from the blood test taken
approximately four hours and twenty minutes after the collision and gave an
opinion as to what range Malott’s BAC would have been in at the time of the
collision. Malott does not dispute that Dr. Arnold was qualified as an expert
and did not object to Dr. Arnold’s testimony regarding the results of the blood
test. Malott, however, challenges the admission of Dr. Arnold’s testimony
regarding her opinion of what range Malott’s BAC would have been in at the
time of the collision.
[15] Dr. Arnold testified that she could estimate a range for Malott’s BAC at the
time of the collision using the theory of retrograde extrapolation. The trial
court allowed this testimony over Malott’s objection. In challenging the
admission of Dr. Arnold’s testimony, Malott argues as follows:
Dr. Arnold’s testimony regarding the retrograde range, because
of its lack of reliability, does not help the jury but, instead,
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exposed the jury to information that had the potential of being
unfairly prejudicial and confusing. Dr. Arnold was allowed to
opine that Malott’s BAC was between .151 and .216 despite
conceding that she could not definitively say what his actual
BAC level was and could further not say he was not below a .08
at the time of the accident. She could not say he was not in the
absorption phase.
Appellant’s Br. p. 25. For its part, the State argues that “[r]etrograde
extrapolation evidence has long been deemed admissible; in fact, whenever the
State is operating outside the statutory presumption window, the State must
present retrograde extrapolation evidence to prove a charged” offense.
Appellee’s Br. p. 20. We agree with the State.
[16] Indiana Code section 9-30-6-15(b) provides that if a chemical test is
administered within three hours of when the individual is suspected to have
driven under the influence, the results, if showing the individual to have a BAC
of .08 or above, create a rebuttable presumption that the individual was driving
with a BAC of .08 or above. “The only effect of the failure to perform the test
within the statutory timeframe is that the State is deprived of the rebuttable
presumption provided in Section 15(b).” State v. Stamm, 616 N.E.2d 377, 380
(Ind. Ct. App. 1993). “[T]he delay is relevant only to the rebuttable
presumption, not the admissibility of the chemical test.” Id. Thus, if the test
was taken more than three hours after the person is suspected to have driven
under the influence, the State may not rely solely on the test results but must
provide extrapolation evidence relating the driver’s BAC to the time of the
incident. See Mannix v. State, 54 N.E.3d 1002, 1009 (Ind. Ct. App. 2016)
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(providing that because Mannix’s blood was drawn more than three hours after
the accident, the State was deprived of the rebuttable presumption in Section 9-
30-6-15(b) and therefore must have provided extrapolation evidence relating
Mannix’s BAC at the time of the test back to the time of the accident); Stamm,
616 N.E.2d at 380 (providing that test results taken more than three hours after
an individual is alleged to having driven under the influence may be used to
determine the precise BAC of the defendant at the time of the accident if the
State produces additional evidence of such BAC by means of extrapolation).
[17] Malott asserts that Dr. Arnold’s opinion testimony as to the potential range of
his BAC at the time of the collision should have been excluded because the
potential probative value of the opinion was substantially outweighed by the
danger of unfair prejudice and confusion of the issues. See Ind. Evid. Rule 403
(“The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.”). In arguing that he was prejudiced by the admission of
the challenged evidence, Malott asserts as follows:
No amount of cross-examination can erase these numbers from a
jury’s mind when coming from an individual identified as having
a high level of expertise in the field. The expectation that a jury
filled with lay persons would discount Dr. Arnold’s opinion, on
an issue as complex and detailed as retrograde extrapolation, is
simply too far farfetched no matter how effective the cross-
examination may have been. Dr. Arnold’s opinion on the
extrapolation issue substantially prejudiced Malott’s ability for a
fair trial.
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Appellant’s Br. p. 23. For its part, the State asserts that Malott’s arguments “go
only to the weight of the evidence, not to its admissibility, and they do not
show that the probative value of the testimony was substantially outweighed by
the danger of unfair prejudice.” Appellee’s Br. p. 22. Again, we agree with the
State.
[18] In testifying about how retrograde extrapolation works and its limitations, Dr.
Arnold acknowledged that there are several factors that can affect absorption
and elimination rates and that people will absorb and eliminate alcohol at
different rates. She testified that the general consensus is that on average, a
person’s body absorbs alcohol for “somewhere between 30 minutes and an
hour” after their last drink. Tr. Vol. IV p. 84. However, “looking backwards,
there’s no way” for her to precisely identify Malott’s alcohol absorption rate.
Tr. Vol. IV p. 84. She further testified that she relies on ranges in completing
retrograde extrapolation analysis because she’s “not going to assume
somebody’s average … science shows that you can be lower or you can be
higher. So I’m going to always present that as possibilities, because it is a
possibility.” Tr. Vol. IV p. 87. Dr. Arnold further acknowledged that not
everyone agrees that retrograde extrapolation is “a good type of methodology to
be used in criminal prosecutions,” especially when “people use averages and
assume someone is that average as opposed to taking the low and high range of
what has been reported in the literature the way that I approach it.” Tr. Vol. IV
p. 131. The State accurately states that “[t]he jury was fully apprised of the
factors that may influence these rates and of the information that was unknown
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to Dr. Arnold and thus prevented her from calculating a definitive BAC at the
time of the crash.” Appellee’s Br. p. 23. As such, we agree with the State that
“[i]t was for the jury to decide, given this information, how much weight to
place on the fact that Defendant had a .108 BAC a little over four hours after
the crash and how much weight to place on Dr. Arnold’s expert opinion
regarding Defendant’s likely BAC at the time of the crash.” Appellee’s Br. p.
23. The trial court, therefore, did not abuse its discretion in admitting the
challenged evidence.
II. Sufficiency of the Evidence1
[19] Malott also contends that the evidence is insufficient to sustain his conviction
for Level 4 felony OWI with a prior conviction causing death. Our standard of
review for challenges to the sufficiency of the evidence is well-settled. Bell v.
State, 31 N.E.3d 495, 499 (Ind. 2015). “We do not reweigh the evidence or
assess the credibility of witnesses in reviewing a sufficiency of the evidence
claim.” Id. Conflicting evidence is considered “in the light most favorable to
the trial court’s finding.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). This is
because the factfinder, and not the appellate court, “is obliged to determine not
only whom to believe, but also what portions of conflicting testimony to
1
The State argues that Malott waived his challenge to the sufficiency of the evidence by pleading guilty.
However, review of the record reveals that while Malott did plead guilty to the enhancement of his OWI
conviction from a Level 5 felony to a Level 4 felony due to a prior OWI conviction, Malott only stipulated
that he had been convicted of an unrelated OWI offense within five years of committing the instant OWI
offense and explicitly retained his right to challenge the sufficiency of the evidence of the underlying OWI
charge.
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believe, and is not required to believe a witness’s testimony even when it is
uncontradicted.” Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (internal
quotation and brackets omitted). On appeal, we “look to the evidence and
reasonable inferences drawn therefrom that support the verdict and will affirm
the conviction if there is probative evidence from which a reasonable fact-finder
could have found the defendant guilty beyond a reasonable doubt.” Bell, 31
N.E.3d at 499.
[20] At the time of the collision, Indiana Code section 9-30-5-5(a)(3) provided that a
person who caused the death of another person when operating a vehicle while
intoxicated committed a Level 5 felony. However, “a person who cause[d] the
death of another person when operating a vehicle … commit[ed] a Level 4
felony if: (1) the person operating the vehicle ha[d] a previous conviction of
operating while intoxicated within the ten (10) years preceding the commission
of the offense[.]” Ind. Code § 9-30-5-5(b)(1). It is undisputed that Waters was
killed in the collision with Malott and that Malott had a prior OWI conviction
within the five years preceding the collision. In challenging his conviction,
Malott argues only that the evidence is insufficient to prove that he was
intoxicated at the time of the collision.
[21] “‘Intoxicated’ means under the influence of: (1) alcohol … so that there is an
impaired condition of thought and action and the loss of normal control of a
person’s faculties.” Ind. Code § 9-13-2-86. “[P]roof of intoxication may be
established by showing impairment, and … does not require proof of a [BAC]
level.” Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999). “Evidence
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of the following can establish impairment: (1) the consumption of significant
amounts of alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot
eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6) failure of
field sobriety tests; (7) slurred speech.” Id. However, a person need not exhibit
signs of both physical and cognitive impairment as impairment of either creates
a considerable danger to others. See Curtis v. State, 937 N.E.2d 868, 873 (Ind.
Ct. App. 2010) (providing that a person who displays signs of cognitive
impairment but control of his physical movements is as much of a danger as a
person who is unable to control his physical movements but has cognitive
lucidity). “It is perhaps for this reason that our courts have consistently” held
that impairment need not be proven by element-by-element fashion but rather
can be “established by evidence of certain behaviors and traits evincing
impairment, irrespective of whether that evidence established particularized
impairment of action, and impairment of thought, and loss of control of
faculties.” Id. “Circumstantial evidence is sufficient to prove that the
defendant operated the vehicle while intoxicated.” Jellison v. State, 656 N.E.2d
532, 535 (Ind. Ct. App. 1995).
[22] At trial, Malott admitted that he arrived at the “Three Sheets Bar” at around
4:45 p.m. and stayed for about fifteen to twenty minutes. Tr. Vol. V. p. 90. He
further admitted that while at the bar, he consumed “two tall draft[]” beers. Tr.
Vol. V p. 91. A reasonable person could infer that drinking two tall draft beers
in such a short time span could impair one’s mental faculties. See generally
Jellison, 656 N.E.2d at 535 (providing that evidence that the defendant had
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consumed alcohol in the hours preceding a traffic accident could support an
inference of impairment).
[23] In addition to Malott’s own testimony, the State’s evidence regarding Malott’s
alcohol consumption supports the inference that Malott was impaired at the
time of the collision. Malott avoided direct eye contact and turned his head to
avoid speaking directly at investigating officers. He also provided differing
explanations for his actions immediately preceding the collision. Further, while
Malott’s BAC at the time of the collision is unknown, four hours and twenty
minutes after the collision, his BAC was .108. Although the test was conducted
more than three hours after the collision, the results, which show that Malott
had alcohol in his system, are admissible to support the OWI charge. See
Stamm, 616 N.E.2d at 380. This is especially true given that there is nothing in
the record that would suggest that Malott consumed any alcohol in the time
that passed between the time of the collision and testing, supporting the
inference that all alcohol in his system at the time of testing was present in his
system at the time of the collision. In addition, Dr. Arnold testified that for
Malott’s BAC to be .108 four hours and twenty minutes after the collision, he
would have had to have consumed at least “between 6.1 and 9 standard
drinks,” depending on the rate at which his body absorbed alcohol. Tr. Vol. IV
p. 117. Dr. Arnold also testified that impairment generally begins when a BAC
is .04 or .05. A reasonable person could infer from the State’s evidence
regarding Malott’s alcohol consumption that Malott was intoxicated at the time
of the collision.
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[24] In challenging the sufficiency of the evidence to prove intoxication, Malott
essentially requests that we disregard the BAC evidence and Dr. Arnold’s
testimony and instead credit his self-serving testimony that he was not
intoxicated. Malott’s challenge to the sufficiency of the evidence amounts to
nothing more than an invitation to reweigh the evidence and reassess witness
credibility, which we will not do. Bell, 31 N.E.3d at 499. Furthermore, while
we acknowledge that evidence of erratic or reckless driving can, under some
circumstances, be a sign of intoxication, see Boyd v. State, 519 N.E.2d 182, 184
(Ind. Ct. App. 1988) and Hughes v. State, 481 N.E.2d 135, 137 (Ind. Ct. App.
1985) (providing that the factfinders could infer impairment from the
defendants’ acts of driving well above the posted speed limit at night and dusk,
respectively, especially when coupled with other visible signs of the defendants’
intoxication), in this case, we conclude that the jury was provided with
sufficient evidence unrelated to Malott’s driving from which it could find that
Malott was intoxicated.
III. Double Jeopardy
[25] Finally, Malott claims, and the State concedes, that because the collision
resulted in the death of only one person, prohibitions against double jeopardy
prohibit Malott from being punished for both Level 5 felony reckless homicide
and Level 4 felony OWI with a prior conviction causing death. Malott argues
that we should eliminate the double jeopardy violation by reducing “the OWI
death conviction, as a level 4 Felony, to an OWI with a prior conviction … as a
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Level 6 Felony.” Appellant’s Br. p. 21. For its part, the State argues that we
should eliminate the violation by vacating the reckless homicide conviction.
A. Overview of Cases Discussing OWI Causing Death and
Reckless Homicide
1. Carter, Drossos, and Marshall
[26] In Carter v. State, 424 N.E.2d 1047 (Ind. Ct. App. 1981), Carter was convicted of
both OWI causing death and reckless homicide. The evidence at trial
established that Carter was intoxicated at the time of the incident and “[t]hat
coupled with the apparent speed and manner in which the vehicle swerved off
both sides of the road prior to striking the tree would support the inference of
recklessness.” Carter, 424 N.E.2d at 1048. On appeal, we concluded that
Carter could not be convicted of both OWI causing death and reckless
homicide. Id. In explaining our conclusion, we stated the following:
There was here but one homicide, and that was the gravamen of
the offense. It matters no more that Carter was both intoxicated
and driving recklessly in causing his passenger’s death than it
would have had Carter poisoned him, stabbed him and thrown
him from a high bridge. The means of committing an offense
may not be utilized to multiply the number of offenses
committed. Only one homicide was committed and only one
sentence may be imposed.
The case is therefore remanded to the trial court with instructions
to vacate one of the sentences.
Id. (internal citations omitted).
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[27] We reached the same conclusion in Drossos v. State, 442 N.E.2d 1 (Ind. Ct. App.
1982). In that case, Drossos was involved in an accident in which four people
were killed. Drossos, 442 N.E.2d at 2. Evidence established that at the time of
the accident, Drossos was both driving recklessly and intoxicated. Id. at 2–3.
Just prior to the accident, Drossos had been tailgating another vehicle and
driving aggressively, and he was traveling at a rate of speed above the posted
speed limit when he collided with the other vehicle. Id. at 2. Officers
administered a breathalizer test, which subsequently revealed that, at the time
of the collision, Drossos’s BAC was .17. Id. at 3. Drossos was charged in
relation to the death of the other driver and two of the other driver’s passengers,
with one count of reckless homicide and one count of OWI causing death for
each individual. Id. He was subsequently convicted of all six charges. Id.[28] On appeal, we noted that Drossos was convicted twice for killing each victim.
Id. at 6. Citing to Carter, we concluded that “[i]n a case such as this, there was
but one homicide of each victim and evidence can support but one conviction.”
Id. We affirmed Drossos’s convictions for OWI causing death and remanded
the matter to the trial court with instructions to vacate the three reckless
homicide convictions. Id. at 6–7.
[29] We also reached the same conclusion in Marshall v. State, 563 N.E.2d 1341 (Ind.
Ct. App. 1990). In this case, Marshall lost control of his vehicle while driving,
killing six passengers. Marshall, 563 N.E.2d at 1342. At the time of the
accident, Marshall’s BAC was .12. Id. Marshall was charged with and
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convicted of both operating a vehicle with a BAC of .10 causing death and
reckless homicide. On appeal, we concluded as follows:
Marshall cannot be convicted of operating a motor vehicle with a
BAC of .10% or more resulting in death and reckless homicide
for the death of a single individual. Therefore, the trial court
erred in failing to vacate either Marshall’s conviction and
sentence for the operating offense or the reckless homicide
offense based upon the death of the same individual.
Id. at 1343. We “remanded with instructions to the trial court to vacate the
conviction and sentence for either operating a vehicle with a BAC of .10% or
more resulting in death or the conviction and sentence for reckless homicide
arising from the death of the same individual.” Id. at 1344.
2. Dawson
[30] In Dawson v. State, 612 N.E.2d 580 (Ind. Ct. App. 1993), an individual was
killed after being struck by Dawson’s motorcycle. After a night of drinking,
Dawson arrived at a party at about 2:00 a.m. and decided to entertain or
impress his fellow partygoers by riding his motorcycle in a “wheelie” in front of
them. Dawson, 612 N.E.2d at 582. Tragically, one of Dawson’s friends died
after being struck by Dawson’s motorcycle as the friend “happened to walk or
run” into the street. Id.[31] On appeal, we concluded that Dawson could not be punished for both OWI
causing death and reckless homicide. However, in reaching this conclusion we
stated that unlike in Carter and Drossos, “[w]e are not convinced Dawson’s OWI
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death and reckless homicide offenses are the same for double jeopardy
purposes.” Dawson, 612 N.E.2d at 585. We explained as follows:
Unlike in Carter and Drossos, the State’s legal theory supporting
its allegation of reckless homicide against Dawson did not entail
proof of intoxication. To the contrary, to establish Dawson’s
recklessness the State need have established only that Dawson
did a wheelie on his motorcycle, since a wheelie by its very
nature is a reckless act. This the State did. Because the offense
of reckless homicide was premised on Dawson’s wheelie, and not
on his intoxication, and the offense of OWI death was premised
on Dawson’s intoxication, and not on the fact that he did a
wheelie, the two offenses are not the same for double jeopardy
purposes and double jeopardy is not offended by punishing
Dawson for each.
Id. (footnote omitted). We concluded, however, that “[a]lthough double
jeopardy does not forbid Dawson from being punished for both OWI death and
reckless homicide under these facts (i.e., when recklessness is not predicated
upon intoxication), we hold Indiana law does impose such a prohibition.” Id.We remanded the case to the trial court with instructions to vacate Dawson’s
OWI causing death conviction, enter the lesser-included OWI conviction, and
to sentence Dawson accordingly. Id. at 586. Specifically, we stated the
following:
Because double jeopardy prohibits multiple punishments for the
same offense, and because Carter and Drossos were decided on
double jeopardy grounds, the Carter and Drossos courts were
compelled to vacate at least one of the sentences and/or
convictions in question. Dawson’s case, on the other hand,
raised no constitutional double jeopardy prohibitions;
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accordingly, double jeopardy does not require that we vacate one
of his convictions and/or sentences. Indiana case law requires
only that Dawson not be punished for both OWI death and
reckless homicide convictions arising from the same accidental
death; it does not forbid Dawson from being punished for, say,
reckless homicide and operating a vehicle while intoxicated
(OWI), a lesser-included offense of OWI death.
In fact, we find that substituting OWI for OWI death is a
satisfactory outcome here.… Because OWI is a lesser-included
offense of OWI death, it is plain Dawson was guilty of OWI and
was put on notice that he could be punished for it.
Id. at 585–86.
B. The Instant Matter
[32] Malott argues that like in Dawson, the convictions were based on distinct facts.
Specifically, he claims that the Level 5 felony reckless homicide charge was
premised on his reckless behavior and not on his intoxication, and the Level 4
felony OWI with a prior conviction causing death charge was premised on his
intoxication and not on the fact that he drove recklessly. We cannot agree.
[33] In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana Supreme Court
concluded that “two or more offenses are the same offense in violation of article
1, section 14 if, with respect to either the statutory elements of the challenged
crimes or the actual evidence used to obtain convictions, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).
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Under the actual evidence test, we examine the actual evidence
presented at trial in order to determine whether each challenged
offense was established by separate and distinct facts. To find a
double jeopardy violation under this test, we must conclude that
there is a reasonable possibility that the evidentiary facts used by
the fact-finder to establish the essential elements of one offense
may also have been used to establish the essential elements of a
second challenged offense.… Our precedents instruct that a
reasonable possibility that the jury used the same facts to reach
two convictions requires substantially more than a logical
possibility.
Id. at 719 (internal quotations and citations omitted). “The existence of a
reasonable possibility turns on a practical assessment of whether the [fact
finder] may have latched on to exactly the same facts for both convictions.” Id.
at 720 (brackets in original). “We evaluate the evidence from the jury’s
perspective and may consider the charging information, jury instructions, and
arguments of counsel.” Id.
[34] While the charging information for the reckless homicide charge does not
mention intoxication, like in Carter, Drossos and Marshall, the collision occurred
while Malott was operating a vehicle for normal travel on a public roadway.
Just prior to the collision, Malott was stopped at the intersection of Franklin
Street and Barker Street near downtown Michigan City, headed southbound on
Franklin Street in the left-hand lane. Two other vehicles driven by Garrett and
Johnson were stopped in the lane adjacent to Malott’s vehicle. When the light
turned green, Garrett’s and Johnson’s vehicles began moving, but Malott’s did
not. After a few moments, Malott revved his engine. Malott then “squealed his
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tires and, like, took off really fast and jetted past [Garrett] and um, crashed into
a car that was coming, turning onto Franklin. He crashed into him. He T-
boned him.” Tr. Vol. II p. 242. Although Malott attempted to justify his
actions by claiming that another vehicle had tapped his bumper while he was
stopped at the traffic light and aggressively followed him at a high rate of speed
once the light turned green, neither Garrett nor Johnson observed another
vehicle following close to Malott at a high rate of speed. At the time of the
collision, Malott was traveling approximately sixty-seven miles per hour, well
above the posted thirty-miles-per-hour speed limit. While Malott’s BAC at the
time of the collision is unknown, approximately four-and-one-half hours after
the collision, his BAC was .108 plus or minus .008 grams per 100 milliliters.
[35] Furthermore, in its closing argument to the jury, the State argued that Malott’s
impairment was a cause of his reckless driving. Specifically, the State asserted:
What’s … impairment? Lack of inhibitions, poor judgment, slow
reactions, no reactions, buzzed driving is drunk driving. We’ve
heard that slogan. You’re not as quick when you’ve got six
drinks on—board. You’re different. You don’t have inhibitions.
You don’t have good judgment. You might decide, assuming
someone honks their horn and flips you off, you need to go 75
miles per hour down Franklin Street while looking in the
rearview mirror, despite the fact that there’s traffic and a bunch
of people in front of you. That’s impaired judgment. You might
be driving 75 miles per hour mostly looking in your rearview
mirror, if it’s true, because you’re not putting together the fact
that you really ought to be paying attention where you’re going
in case somebody’s in the road. You might, despite the fact that
somebody’s in the road, not notice them or not react and even
though you’re 100 yards away or more, well, if you were sober,
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you probably would have been paying attention, you probably
would have done something about it, and you wouldn’t have
been going 75 miles per hour in the first place.… Do we have
terrible judgment, impaired judgment, unjustifiable judgment?
Do we have lack of inhibitions? Do we have lack of reaction?
We do. This seems like an okay idea, this seems like an
appropriate response. I don’t just drive 35 to 40 miles an hour in
a way and go to the police or use my cell phone, because my
thinking is impaired, my judgment is impaired, and this seems
like a perfectly acceptable thing to do, 75 miles an hour down
Franklin. I am exaggerating, it was 74.7 miles per hour. I
rounded up. Would a sober person with normal faculties make
those decisions and drive like that? Well, if they were being
reckless, what’s the probable reason that those reckless decisions
seemed okay? Impairment.
Tr. Vol. V. pp. 130–31.
[36] Considering the charging information, the evidence relating to the collision,
and the State’s arguments to the jury, we conclude that the jury could have
reasonably inferred that Malott’s reckless driving was caused by impairment.
The evidence supports an inference that Malott exhibited poor reflexes and
judgment, driving in a manner that caused him to collide with Waters’s vehicle.
As such, we conclude that the facts of the instant matter are more akin to those
in Carter, Drossos and Marshall than in Dawson. In each of those cases, we
remanded the matter with instructions to vacate either the convictions for OWI
causing death or reckless homicide. Following the precedent set forth in each
of these case, we conclude that the appropriate way to remedy the double
jeopardy violation here is to vacate one of Malott’s convictions.
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[37] “[W]hen we determine that two convictions contravene double jeopardy
principles, we may eliminate the violation by vacating either conviction, and we
consider the penal consequences that the trial court found appropriate.” Owens
v. State, 742 N.E.2d 538, 545 (Ind. Ct. App. 2001). In this case, the trial court
considered the appropriate penal consequences and sentenced Malott to an
aggregate ten-year term of imprisonment. Taking the penal consequences
imposed by the trial court into account, we vacate the Level 5 felony reckless
homicide conviction because it has less severe penal consequences, and we
leave standing the Level 4 felony OWI conviction. See Jenkins v. State, 726
N.E.2d 268, 271 (Ind. 2000) (vacating the robbery conviction because it has less
severe penal consequences than the remaining felony murder conviction);
Owens, 742 N.E.2d at 545 (vacating the defendant’s battery conviction because
it had less severe penal consequences that the remaining attempted robbery
conviction). On remand, we instruct the trial court to vacate Malott’s
conviction for Level 5 felony reckless homicide.
[38] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions.
Baker, J., and Pyle, J., concur.
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