Tin Nung v. State of Indiana (mem. dec.)
49A04-1606-CR-1449
| Ind. Ct. App. | Mar 29, 2017Background
- On Oct. 19, 2015 Officer Gibson found Tin Nung alone in a vehicle stopped in the roadway on Wellwood Road, blocking a lane and forcing other cars onto the curb/sidewalk. The vehicle’s ignition was off and no key was present.
- Gibson detected the odor of alcohol; Nung was wearing only shorts and a t-shirt in freezing weather, required help exiting the car, and nearly fell several times.
- The State charged Nung with two counts of public intoxication as Class B misdemeanors: (1) endangering himself (I.C. § 7.1‑5‑1‑3(a)(1)) and (2) endangering others (I.C. § 7.1‑5‑1‑3(a)(2)).
- At the bench trial the State expressly argued the endangerment was the vehicle’s position in the roadway (not Nung’s attire or the weather), and the court relied on that theory in finding Nung guilty on both counts.
- Nung appealed, arguing the two convictions violate Indiana’s Double Jeopardy Clause under the actual‑evidence test because the same evidentiary facts established both offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two public‑intoxication convictions (endangering self; endangering others) violate Indiana double jeopardy under the actual‑evidence test | State: separate evidence supports each conviction — e.g., Nung’s scant clothing in freezing weather endangered himself | Nung: the same facts (intoxicated in a stopped vehicle blocked in the road) were used to prove both offenses, so convictions are duplicative | Court reversed one conviction (endangering others), holding the fact‑finder relied on the same evidentiary facts for both offenses, violating the actual‑evidence test |
Key Cases Cited
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (announcing statutory‑elements and actual‑evidence tests for Indiana double jeopardy)
- Spivey v. State, 761 N.E.2d 831 (Ind. 2002) (actual‑evidence test requires that one offense not be established by all elements of another)
- Lee v. State, 892 N.E.2d 1231 (Ind. 2008) (explaining the ‘reasonable possibility’ standard and evaluating fact‑finder perspective)
- Garrett v. State, 992 N.E.2d 710 (Ind. 2013) (summarizing Richardson and applying the actual‑evidence framework)
- Smith v. State, 881 N.E.2d 1040 (Ind. Ct. App. 2008) (double jeopardy may be raised sua sponte on appeal)
- Rexroat v. State, 966 N.E.2d 165 (Ind. Ct. App. 2012) (standard of review: double jeopardy questions are reviewed de novo)