*1 Ray WEIDA, III, Appellant- Charles
Defendant, Indiana, Appellee-Plaintiff.
STATE
No. 08A02-9706-CR-351. Appeals
Court of of Indiana.
March 1998.
Rehearing May Denied 1998. July
Transfer Denied 1998. *2 HISTORY
FACTS AND PROCEDURAL 29, 1996, аfternoon of October In the late Farrell, friend, Mark at a met his Weida after dark and Delphi. Sometime tavern beverages, consuming alcoholic Weida after truck. the tavern in Weida’s and Farrell left was up in a ditch. Farrell The truck ended intoxicated, sitting in the but remembers standing outside passenger seat and Weida door, help get him passenger asking to got Farrell truck out of the ditch. Weida’s truck, in on the driver’s out of the climbed side, truck back and and started to rock the present else was forth in the ditch. No one and Farrell. but Weida Trooper Curt Dittmaier was Indiana State There, dispatched he discover- to scene. ditch, in the truck in the Farrell ed Weida’s seat, passenger in the driver’s and Weida Diamond, Appellant- Delphi, for Darrel K. that he Farrell told Officer Dittmaier seat. Defendant. it into driving the truck when went was not General, Modisett, Attorney Ra- Jeffrey A. Dittmaier asked the ditch. When Officer General, Zaffrann, Attorney In- Deputy chel happened, admitted driv- Weida what Weida Appellee-Plaintiff. dianapolis, for spoke ing truck. As Officer Dittmaier Weida, had diffi- he noticed that Weida
with removing license from his culty his driver’s OPINION wallet, speech, had bloodshot and had slurred KIRSCH, Judge. strоngly of alcohol- watery eyes, and smelled Dittmaier also noticed beverages. ic Officer Weida, Ray appeals III his convic- Charles of the truck. open beer cans on the floor two intoxicated,1 operating а vehicle tion of felony, his enhance- D sentence a Class hard, raining very it was Officer Because offend- being an habitual substance ment for county jail to Dittmaier took Weida to for our review: raises five issues er. He sobriety exhib- field tests. Weida administer jail. into the poor as he walked ited balance presented suffi- I. the State Whether perform to Dittmaier asked Weida Officer independent proof of the cor- cient tests, sobriety both two different field that Weida’s admission pus delicti so Dittmaier then Officer which Weida failed. vehicle was being the driver of the to to believe probable he had cause told Weida admissible. intoxicated and informed was Weida the evidence was suffiсient II. Whether Implied Consent Law. of Indiana’s Weida conviction. support to Weida’s a chemical breath agreed to submit to Weida subjected an was III. Whether Weida alco- that he had a blood test which revealed enhаncement impermissible double of .22. hol content of his sentence. charged operating while was with in- properly trial court IV. Whether and, in a A misdemeanor intoxicated as Class duty concerning jury its structed the information, operat- сharging separate a the law. to determine felony a D intoxicated as Class ing while properly en- the trial court Whether V. qualifying a upon the existence of based sentence. hanced Weida’s charged as an was also conviction. In a bifurcated offender. habitual substance We affirm. -3. 1. See hypotheti- Although Weida advances several jury Weida as convicted
proceeding,
may provide alternative
cal situations that
court sentenсed Weida
charged. The trial
ending up
truck
explanations for Weida’s
felony charge,
D
enhanced
years on the
ditch,
supports the reason-
the evidence
upon the habitual sub-
years
three
based
person
an intoxicаted
inference that
able
finding, for a total sentence
offender
stance
*3
required
all that is
to
drove it there. This is
appeals.
years. Weida
of five
corpus
and render Weida’s
prove the
delicti
driving the truck admissible.
to
admissiоn
AND DECISION
DISCUSSION
442,
(although
at
601 (Ind. State, v. 234 -15. See also See Jones presumed. State, 687, 692-93 Thompson Ct.App.1983) (discussing v. amendment to defi Although (Ind.Ct.App.1995), dwelling burglary trans. denied. statute and nitiоn of permits in- argues that the evidence noting legislative to statute amendment at that Weida not intoxicated pre ferences was is that has been construed courts vehicle, operated it was for time he response appellate deci sumed to be to such any jury weigh sions). State, and draw evidence Haymaker See also jury’s (Ind.1996) inferences. We will not disturb (noting amend N.E.2d conclusions. declaring that ment to IC 35-50-2-10 and 1, 1996, July convictions un “effective
III.Double
Enhancеment
(operating
der I.C. 9-30-5
a vehicle
he was sub
next claims that
intoxicated)
predicate
will be
as
of
available
*4
impermissible
enhance
jected to an
double
for habitual
offender en
fenses
substance
operating
he was
of
ment when
convicted
hancements.”).
statutory
Given the
amend
felony,
a
D
rather
intoxicated as Class
ment,
the double
of Weida’s
enhancement
misdemeanor,
upon
A
as a Class
based
than
proper.
sentence was
conviction,
a
and when
the existence of
IV.Jury
Instructions
sentenced as an habitual substance
he was
upon
of two
based
the existence
offender
the trial court
Weida next contends that
prior operating while intoxicated convictions.
jury
gave
following
it
the
instruc-
erred when
enhance
claims
such a double
tion:
supreme court’s
prohibited
our
ment is
the
the
of Indiana
“Under
Constitution
State,
in
658
pronouncements
Freeman v.
jury
given
right
the
to decide both the
is
(Ind.1995).
N.E.2d 68
duty
fulfilling
the facts.
law and
In
Freeman,
supreme
our
court held that
In
actually
you
apply
you
as
are
the law
legislature did not
for a defendant
the
intend
it,
you
disregard
are
it for
find
not to
(op-
under
9-30-5-3
punished
both IC
be
any
The
of the court
reason.
instruсtions
felony)
D
erating while
as a Class
intoxicated
your
determining
in
what
are
best source
(habitual
of-
35-50-2-10
substance
and IC
the law is.”
fender). Because IC
was the more
9-30-5-3
recognizes that Indiana
Record at 56. Weida
statutes,
the court held
spеcific of the two
approved
have
a
of this instruc
courts
form
only punishment
it was the
to which
See,
many
e.g.,
on
occasions.
Johnson v.
tion
subjected.
may be
Id. at 71. In a
defendant
(Ind.1988);
State,
1073,
1076
case,
supreme
the
court relied on
companion
(Ind.
State,
131,
657
135
v.
N.E.2d
Jackson
and stated that
the absence of
“[i]n
Freeman
abrogated
grounds by
Ct.App.1995),
on other
contrary,
legislative language to the
clear
(Ind.
State,
Winegeart v.
involving Finally, that the trial or of alcohol or Wеida claims transportation, manufacture Freeman, improperly imposed an enhanced sen 658 at 69-70. In court drugs.” N.E.2d felony trial 1996, Assembly the D The Indiana General amend- tence on conviction. upon statutory of- enhanced Weida’s sentence based definition of substance court ed the repeated of alcohol-related by adding language: “The term his commission fense 9-30-5_” despite probation the imposition of an offense under IC offenses includes 97-1996, imprisonment. court § 96- No. and Pub.L. No. and short-term Pub.L. 5 aggravating 1996, legislative lan- noted as an circumstance § This is the clear also 8. when he in extreme level of intoxication absent Freeman and Devore. Weida’s guage found 602 These were sufficient
operated his vehicle. MILLER, Appellant-Defendant, to enhance aggravating circumstances Phillip year presumptive term to one and one-half v. (one and one-half years. 35-50-2-7 D felo- term for Class years presumptivе is Indiana, Appellee-Plaintiff. of STATE State, N.E.2d ny). v. 620 See Scheckel No. 49A02-9706-CR-387. (ineffectiveness (Ind.1993) previous of re- 685 aggravating is valid habilitative treatment Appeals of Indiana. Court State, factor); N.E.2d Schick (continued March 1998. alcohol аbuse is (Ind.Ct.App.1991) factor), trans. denied. aggravating valid
Affirmed.
FRIEDLANDER, J., concurs.
SULLIVAN, J., part in and dis- concurs part separate opinion.
sents
SULLIVAN, concurring part Judge, *5 dissenting part. I, II, fully respect to Parts
I concur with However,
IV, respect I dissent with and V.
to Part III. (1995) Ind., view, my
In Freeman v. State (1995) 68, and Devore v. State
Ind., viable as con- remain notwithstanding
trolling authority, the 1996 35-50-2-10. See also
amendment of I.C. (1996) Ind.App., 672
Morphew v. State By adding IC.
N.E.2d 461. offenses under
9-30-5, embracing all of the numerous of- Chapter, forth in that I.C. 35-50-
fenses set specific. broader not more
2-10 was made statutory 9-30- scheme reflected I.C. specific more of the two. Fur-
5 remains the
thermore, upon if one focuses I.C. concerned, ap- are here it is
with which we compo- “previous conviction”
parent provision particular even
nent renders regard with to the specific
more and detailed statutory punishment. for
overall scheme reason,
For I would reverse the habit- re-
ual offender enhancement and substance the sentence to
mand for modification of years, only of two
reflect the sentence felony. year suspended, for the Class D
one